Is Oil Worth More Than Water?

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By Professor Victoria Sutton

March 01, 2026

 Guest Opinion. The Dakota Access Pipeline (DAPL) is a proposed 30-inch-diameter pipeline, 1,150 miles long, transporting crude oil from North Dakota to Illinois through South Dakota and Iowa. The Standing Rock Sioux Tribe of Fort Yates, North Dakota, along with the Yankton Sioux Tribe, the Oglala Sioux Tribe, and the Cheyenne River Sioux Tribe, were not consulted on the plan and objected to it.

In 2016, the Standing Rock Sioux Tribe filed for an injunction to stop the project because the U.S. Army Corps of Engineers (USACE) had prepared only an Environmental Assessment (EA) and issued a Finding of No Significant Impact (FONSI), failed to consider historic sites under the National Historic Preservation Act (NHPA), Section 106, and failed to consider cumulative impacts when state and federal governments issued a permit under the Clean Water Act for the project. The court denied the injunction, opining that DAPL could cure the defects in the EA and possibly even reach the same conclusion. There were continuing legal actions to review the project, and the U.S. Supreme Court denied certiorari, allowing a lower court decision to stand that permitted the pipeline to continue operating.

The Environmental Impact

When there is “no significant environmental impact on the human environment,” as determined in an Environmental Assessment (EA), a federal agency can declare that an Environmental Impact Statement (EIS) is not needed. That finding—regarding a major pipeline project that would cross the freshwater Lake Oahe—was laughable on its face.

That decision was found to be arbitrary and capricious by a federal court in 2020, and the U.S. Army Corps of Engineers was ordered to prepare an Environmental Impact Statement. While it seemed implausible that a notoriously leak-prone technology crossing a freshwater lake would pose no environmental risk, the court instead pointed to the criterion of being “highly controversial” as at least one regulatory trigger requiring an Environmental Impact Statement.

It took five years to complete (or perhaps until the political environment was more favorable), and it was then opened for comment for only 30 days. The Administrative Procedure Act (APA) requires a 60-day comment period unless there is an emergency. For a project initially found to have no environmental impacts, the Final EIS ultimately identified more than a few—across 487 pages.

At the notice-and-comment stage, which closed in January 2026, the public could submit comments, and the agency was required only to consider them; it could, of course, reject them all.

The Prophecy of the Black Snake

There is a prophecy among the Lakota (and others) that a large black snake will come to threaten their land and make life miserable. During the invasion of the Black Hills, the Lakota saw the long lines of covered wagons streaming into their land and believed this must be the black snake. Now, the pipeline recalls this prophecy and foreshadows a threat to their land—and water.

Five Years in the Making: The Environmental Impact Statement

In the 487 pages of the Final Environmental Impact Statement (FEIS), to its credit, the word “sacred” appears 17 times. That is scant mention in a document of this length, but at least it was acknowledged. Several references cite the “Sacred Sites” Executive Order, which directs agencies to consider Native American sacred sites in their decision-making.

An Environmental Impact Statement must analyze and consider alternatives to the proposed project. The FEIS outlines five alternatives:

• Alternative 1: Deny the easement and remove the pipeline (the required “no action” alternative).
  
  
• Alternative 2: Deny the easement, remove the pipeline, and seek a reroute.
  
  
• Alternative 4: Grant the requested easement with additional conditions beyond those in the vacated easement. These additional conditions would focus on earlier detection of a release and improved response times. If new construction workspace were required to install or maintain groundwater monitoring wells on USACE-managed lands, cultural and historic resources could be impacted, requiring additional NHPA consultation and survey.
  
  
• Alternative 5: Deny the easement and construct an approximately 111-mile-long reroute (the North Bismarck Reroute).

In the end, the agency determined that none of the alternatives that would avoid Lake Oahe were reasonable. The risk of a leak was characterized as remote—some compared it to a one-in-a-million risk. However, in the event of a crude oil leak, all parties agree the consequences would be severe.

This type of risk falls into the category of low probability but high consequence—sometimes referred to as a “black swan” event. According to the FEIS authors, this is the likelihood assigned to a crude oil leak.

It also appears that their best argument is that none of the spiritual or cultural aspects of Lake Oahe for the regional Tribes are part of a NEPA analysis because NEPA does not require “psychological effects.” It is true that NEPA does not require “psychological effects,” but it is a leap to claim that this is equivalent to spiritual and cultural importance.

Here is the statement in the Final EIS:

While this EIS addresses the spiritual and cultural connection to the land, performing an analysis of all possible community-wide psychological effects that the presence of a pipeline and risk of a crude oil release could have on the surrounding population is outside the purpose of the environmental analysis required by NEPA. NEPA is a “forward-looking, not remedial, statute,” intended to require agencies to assess the future effects of future actions.

Final Thoughts

There is a tone of dismissiveness toward the spiritual and cultural values at risk from the potential destruction of Lake Oahe, categorizing them as merely “psychological effects.” These concerns are more appropriately considered “highly controversial”—the very criterion on which the U.S. Court of Appeals for the D.C. Circuit ordered the agency to prepare an Environmental Impact Statement in 2020.

Looking at what we all share—a need for water to survive—is rejecting all the alternatives reasonable? A low-probability, high-consequence risk is unacceptable to people who rely on this freshwater to stay alive, in addition to its spiritual value. If the DAPL FEIS authors faced a one-in-a-million risk of destroying their own water supply, would they still believe it worth the risk?

I would suggest not. I would also suggest they learned nothing from the remand to draft the FEIS.

To read more articles by Professor Sutton go to  https://profvictoria.substack.com/ 

Professor Victoria Sutton (Lumbee) is a law professor on the faculty of Texas Tech University. In 2005, Sutton became a founding member of the National Congress of American Indians, Policy Advisory Board to the NCAI Policy Center, positioning the Native American community to act and lead on policy issues affecting Indigenous communities in the United States.