For the first time, Donald Trump has said he supports finishing construction of the controversial Dakota Access Pipeline, which is currently being held up by both the Obama administration and (more significantly) massive protests near an Indian reservation in North Dakota.
No one should be too shocked that Trump would endorse the $3.8 billion project. He’s repeatedly said that he’s in favor of more fossil fuel infrastructure. And the company behind the pipeline, Energy Transfer Partners, had donated $100,000 to a Trump Victory Fund before the election in the hopes he’d greenlight it. (The pipeline is more than 85 percent finished but is still awaiting permits from the Army Corps of Engineers that would allow it to cross the Missouri River.)
There’s also a bizarre financial twist here: Earlier this year, disclosure forms suggested that Trump himself still had as much as $300,000 personally invested in the project, although spokespeople claim he has since sold much of that stock off.
In a statement Thursday, his transition team insisted that Trump’s support for the pipeline "has nothing to do with his personal investments and everything to do with promoting policies that benefit all Americans." It’s a very odd clarification for a president-elect to have to make.
What happens next with the pipeline may depend on the Obama administration
Right now, Energy Transfer Partners still needs permission to cross the Missouri River at Lake Oahe, which is managed by the Army Corps of Engineers. The Standing Rock Sioux, whose reservation sits just south of the pipeline’s crossing, have opposed the granting of these easements, arguing that they were never properly consulted over concerns that pipeline construction could damage nearby sacred sites or that a pipeline leak could threaten their main source of drinking water.
In September, the Obama administration stepped in and ordered the Army Corps of Engineers to review its decision to issue the easements at Lake Oahe. The agency is currently mulling its options.
There are a few ways this could ultimately play out, explains Jan Hasselman, an attorney at Earthjustice who is representing the Standing Rock Sioux in their federal lawsuit against the pipeline:
1) The Army Corps of Engineers could approve those easements before Trump comes in. If that happens, Trump wouldn’t have to do anything. It’s game over. True, the Standing Rock Sioux are still challenging the Army Corps in federal court over the process that led to the approval of the pipeline, but that lawsuit may not be resolved for a year. If the pipeline is built and then the court later decides the Standing Rock Sioux were improperly consulted, it’s unclear what the remedy would be. Maybe the Army Corps has to redo its environmental impact statement, though the pipeline would still stand.
2) The Army Corps could end up denying those easements for the pipeline before Trump comes in. That would presumably mean that the agency explores alternative routes for the pipeline, which would involve a lengthy environmental review. If that happens, it would be challenging — though not impossible — for a Trump administration to get around that review and approve the pipeline.
“If one agency makes detailed fact findings about how a project is not in the public interest, the next administration can’t just come in and rip it up right away,” Hasselman explains. “They could seek to undo it, but it would be subject to judicial review.”
3) Alternatively, in a particularly radical move, the Obama administration could decide to designate the federal land on either side of Lake Oahe as a national monument under the 1906 Antiquities Act. If that happened, no pipeline could be built in this area, and it would be extremely difficult for the Trump administration to undo that designation.
The big risk here is that this move could provoke the new GOP Congress to rewrite the Antiquities Act — it’s already unpopular with some conservatives, who have argued that Obama has been protecting too much federal land during his administration.
So a lot depends on what the Army Corps of Engineers (and the Obama administration) decides in the next few weeks.
The pipeline protests will continue either way
Meanwhile, the protests near the Standing Rock Sioux reservation will continue to flare up — even as winter sets in.
On Thursday, hundreds of US military veterans arrived at the protest site to join the thousands of Native Americans and environmentalists trying to block construction. Local law enforcement officers have been using particularly harsh methods to disperse the protesters — including using water cannons in freezing weather — but they haven’t managed to stop the opposition.
Last week, the Army Corps of Engineers ordered all protesters to leave the area north of the Cannonball River by December 5. Anyone still on the protest sites after that date, the agency noted, would be prosecuted for trespassing.
In response, protesters said they would not leave, and a few days later, the Army Corps clarified that it would not forcibly push out the protesters and was "seeking a peaceful and orderly transition to a safer location.” Obviously that level of peacefulness could change under a Trump administration.
Trump’s financial ties to the Dakota Access Pipeline remain murky
Coursing throughout this story is the question of what sort of personal financial stake Donald Trump has in the project. Back in May 2015, financial disclosure forms showed that Trump owned stock worth between $500,000 and $1 million in Energy Transfer Partners, the company behind the pipeline.
A subsequent June 2016 disclosure form showed that he’d sold off some of his stake in Energy Transfer Partners — and now owned between $15,000 and $50,000 in stock. But he also had between $100,000 and $250,000 invested in Phillips 66, which has a one-quarter share of Dakota Access.
On November 22, 2016, Trump spokesperson Hope Hicks told the Washington Post that Trump had sold off all of his Energy Transfer stock. But without more transparency, it’s a little hard to know what he owns right now.
Trump also claims that he’s currently in the process of getting rid of his business conflicts of interest before he becomes president, but as my colleague Libby Nelson notes, everyone should scrutinize these promises closely. Normally, when a person becomes president, he puts all his assets into a “blind trust” — meaning he doesn’t know what investments he holds and doesn’t have any contact with the person running it. But it’s possible Trump will just hand off his vast Trump Organization empire to his children, which is very, very different from a blind trust.
“What’s more,” Nelson wrote, “Trump is also only promising to deal with the Trump Organization itself. Because he hasn’t released his tax returns, we don’t know what other sources of income he might have. Nor has he said what he’ll do with his stock portfolio.”
Trump would almost certainly favor the pipeline even if he didn’t have a financial stake in the project — he’s a huge fan of fossil fuel infrastructure of every sort. But it’s a very bizarre and unusual situation.
Read more: The battle over the Dakota Access Pipeline, explained