As the Standing Rock Sioux tribe was mounting opposition to the Dakota Access pipeline last spring, the pipeline company told federal officials that its final route skirting the reservation would not impact any minority or impoverished community.
A confidential environmental justice analysis comparing the original proposed route north of Bismarck and the final one upstream of the Standing Rock reservation was sent by Dakota Access LLC employees to senior officials at the U.S. Army Corps of Engineers. Its counterintuitive findings appear to have been largely incorporated into the Corps' final environmental assessment of the Standing Rock route last July, but weren't given to the tribe or made public.
The 11-page memo, made available through court records, concludes that the pipeline's original path near Bismarck would have "more direct and more disproportionate" impacts to minorities. Those communities surrounding Bismarck are 96 percent white and only 2 percent of residents live below the poverty line.
Standing Rock by contrast ranks as one of the nation's poorest communities. The project will run just over a half-mile upstream of the reservation under Lake Oahe, a Missouri River reservoir used by the tribe for drinking water, irrigation and fish. Three-quarters of its population is Native American and 40 percent of its 8,200 people live in poverty.
The "route does not disproportionately affect low-income or impoverished populations," the memo said.
The document gets at the heart of the issues in ongoing lawsuits and demonstrations against the Dakota Access pipeline, which opponents believe was unjustly sited near the reservation.
"They've gerrymandered the things they are comparing in the analysis to reach an absurd result, which is that the selection of the Oahe crossing instead of the Bismarck route doesn't have environmental justice implications," according to Jan Hasselman, an attorney with the environmental law firm Earthjustice. The organization is suing the Army Corps and Dakota Access on behalf of the Standing Rock tribe.
The main complaint is that the company excluded the reservation from the analysis as a result of how it chose census tract data.
"It seems that the analysis and methodology that was set up was designed intentionally to somehow minimize and mask the impacts of this project on the Standing Rock community," said Robert Bullard, dean of Texas Southern University's School of Public Affairs who is known as the "father of environmental justice."
The memo is dated April 12, 2016, less than one month after the Environmental Protection Agency and other federal agencies raised serious environmental justice and other objections to the Standing Rock route. Under the National Environmental Policy Act (NEPA), agencies must consider environmental justice implications of major infrastructure projects.
"I have not seen anything like this," said JoAnn Chase, director of the EPA's American Indian Environmental Office under President Obama, referring to the Army Corps' use of a confidential analysis. "This seems to run counter to everything that I believe is part of an informed process."
The Interior Department's top lawyer, solicitor Hilary Tompkins, issued a legal opinion in early December opposing the use of the memo in the analysis.
"The United States cannot fulfill its trust responsibility if it makes decisions with such potentially significant impacts on tribal treaty rights based on confidential, adversarial analysis that the opposing tribe cannot independently review," Tompkins wrote.
The Trump administration suspended that opinion in February as it prepared to approve the pipeline and halt additional review.
Dakota Access LLC and the Army Corps declined to comment.
Geography as Destiny
While there is no universal methodology for carrying out demographic analyses for infrastructure projects, the company's approach is controversial. It considered census tract data within a half-mile radius of where the pipeline's boreholes are being drilled to cross the Missouri River.
When applying that distance to the Lake Oahe route, two census tracts fell into consideration. The Standing Rock reservation was not one of them because it falls just outside that half-mile circle, but it's just another 80 yards, or 0.05 miles, further from the construction. The "impacted" two tracts, largely upstream of the project, are almost entirely white and more affluent than people living on the reservation. The EPA had warned that a spill could especially affect water supplies of Standing Rock and other communities downstream, and that the environmental justice analysis should reflect that.
"They put [the pipeline] 0.55 miles upstream of one of the poorest communities in America that is overwhelmingly Native American and then say there is nothing within 0.5 miles that we need to worry about," Hasselman said.
Bullard said there was no justification for using the half-mile radius for the Lake Oahe crossing.
"There is nothing to say that this is standard procedure and is acceptable in the literature, methodology and design," he said. "And even if it were the case, common sense would say look 80 yards down the road, there is a community that would be your prototype environmental justice community, a reservation."
In its analysis of the original pipeline route, which would have been constructed under the Missouri River 10 miles north of Bismarck, the pipeline company considered data from census tracts that pass through the construction site and extend 10 miles or more downstream to communities surrounding the city of Bismarck.
Dakota Access has said it rejected the Bismarck route for a number of factors, including more road and wetland crossings, a longer pipeline, higher costs and close proximity to wellheads providing Bismarck's drinking water supply. The environmental justice finding reinforced its conclusion, the memo said.
The Army Corps' final environmental assessment from July (which was the project's approval) does not cite the memo but only a prior case in which a half-mile radius was used to analyze a liquified natural gas project. Attorneys for the tribe have said that in comparison the environmental justice assessment of the Keystone XL pipeline used a distance of 14 miles downstream from where it crossed waterways.
The Council on Environmental Quality, a federal agency that offers guidance to other agencies on environmental analyses, states, "the selection of the appropriate unit of geographic analysis may be a governing body's jurisdiction, neighborhood, census tract or other similar unit that is to be chosen so as to not artificially dilute or inflate the affected minority population." It calls for special consideration to be given to Native American tribes.
A Not-So-Public Analysis
Chase, formerly of the EPA's American Indian Environmental Office, said she has seen a number of controversial environmental justice assessments, but the underlying documents were public and the assessment's conclusions always subject to public comment. That way, outside experts, including those from other federal agencies and affected communities, could weigh in to help shape the final analysis, she said.
Chase, who had not seen the confidential assessment prior to her resignation from the EPA on Jan. 20, said it raises questions about the permitting process.
"Did the Army Corps rely on this?" she asked.
Hasselman told ICN the tribe didn't receive a copy of the document until November, when it was entered into the administrative record by the Army Corps in the tribe's lawsuit against the agency and the pipeline company.
According to the memo, the company said its analysis was not intended to be included with the environmental assessment, a public document, but should instead be considered "supplemental information" that could be referenced as a "confidential addendum." It said it should be confidential because information it contained, including water intake locations and plume travel times, are not information that is made public.
In the final weeks of President Obama's tenure, the administration halted construction of the crossing beneath Lake Oahe to carry out a more rigorous environmental review, including considering an alternative route away from Standing Rock. President Trump's Army Corps approved the final easement on Feb. 7, however, ending that review. Construction is running ahead of schedule.
The pipeline, which will pump crude oil 1,200 miles from North Dakota to Illinois, could begin operations as early as this month.
Standing Rock and other Native American opponents continue to try to block the project's completion. There are four ongoing lawsuits including one by landowners in Iowa, all seen as longshots.
Hasselman said the memo could play a role in the legal battle against the Army Corps. He has already used it to argue that the Army Corps failed to give proper consideration to environmental justice in its favorable assessment from July.
"The memo reveals how thin the support is," Hasselman said. "This is the kind of thing that should have been subject to the light of day so other agencies, the public, and the Tribe could have seen it and commented on it. Instead, the whole thing took place behind a curtain."