GAIN Releases Report on Indigenous Peoples’ Opposition to Energy Infrastructure

Forbes published a white paper by NYU law professor Richard Epstein on behalf of the GAIN Coalition. The paper contends that the world will continue to rely on fossil fuels for most of its energy needs, but environmental activists are convinced they can alter this reality and often “deploy dubious strategies to thwart promising fossil fuel development projects.” Epstein argues that activists’ latest tactics have included using indigenous peoples to oppose permitted energy infrastructure projects, writing, “A recent example of how this process has evolved is the invocation by the Standing Rock Sioux Tribe (SRST) of two international agreements concerning indigenous people’s rights to halt the Dakota Access Pipeline (DAPL). This paper reviews the flaws underlying the SRST’s legal claims.”

The two documents analyzed in the white paper are the UN Declaration of the Rights of Indigenous Peoples and the so-called Equator Principles, which provide guidelines for banks before making loans for large projects with potential adverse effects on the environment and welfare of indigenous people. Epstein argues the SRST wrongly interprets both documents as “licenses to disregard on the bedrock principles of fairness and reciprocity they are supposed to enshrine.”

In his analysis, Epstein points out the key fact that the US is not a signatory to the UN Declaration – and therefore not bound to any of its guidelines. Even taken at face value, its effect is much more limited than the SRST claims, writing:

In this case, pipelines connected with the DAPL project have been in operation for extended periods of time without incident, and there is no reason to believe that the continued operation of DAPL poses immediate or long-term threat to the SRST’s lands. Generally, pipeline transport of natural gas and oil is demonstrably safer and more environmentally friendly than alternatives such as rail or truck transport. The tribe’s categorical denunciations of pipeline safety and its dishonest and exaggerated assertions about risks unconnected to the scope of a project are not objections raised “in good faith.”

In regard to the Equator Principles, Epstein argues the SRST incorrectly interpreted and instead of cooperating, turned protests into an unruly and sprawling operation, writing:

The SRST, for example, did not participate in good faith in the hearing process set in place to let SRST members and the broader population or work with the Army Corps of Engineers and state public utility commissions. Instead, the Tribe used patently false claims and disruptive protests to slow down a project beneficial to millions of people. Advertisements that invoked Equator principles and they called for banks to stop funding unspecified “environmental disasters,” falsely said to threaten rights of indigenous people, without once acknowledging that DAPL is the safest and most environmentally option available.

The Morton County Sheriff’s Office reported over 180,000 hours of response time at a cost of $22.3 million. Most of the protesters were from out of state, and many had a history of violent activities or criminal records.  The right to protest peacefully is, and should be, constitutionally protected, but peaceful protests do not include burning cars, using threats of force against company or government personnel, or blocking access ways into the construction sites. In fact, those actions should subject the SRST to liability under the tort law for the willful destruction of property.  In addition, the U.S. legal system has long treated as a legal wrong any conduct that amounts to an “Intentional Interference with contractual relations with a third party.”  The Army Corps of Engineers spent $1.1 million in public funds to haul away 835 dumpsters of trash and debris after thousands of protesters finally left the site. The SRST deserves little credit for contributing to the clean-up of a mess that it should have never help create in the first place.

The report goes into detail evaluating the SRST’s claims and providing thorough analysis. The full version can be viewed here. Epstein concludes:

The dubious exploitation of the legal process, the misrepresentations, and the often violent and destructive nature of the protests of DAPL, do not help indigenous people to safeguard their lands from destruction. Instead, these incidents let small factions of environmentalists and their allies disrupt and stop energy projects, with utter disregard for the principle that good faith engagement in public permitting processes must be a two-way streets. The development of alternative energy sources is likely to be slow and fraught with risk.  It is therefore incumbent to make sure that spurious claims of indigenous rights not be used to block fossil fuel projects. Slowing down needed projects will not address any issue of climate change, but it could do much to frustrate the economic development needed to improve the lot of all peoples around the world.