More than 45 dead after remnants of Hurricane Ida slammed the Northeast. In Louisiana, where the hurricane hit days before, hundreds of thousands remain without electricity. Meanwhile, massive fires in the West have burned for weeks. Amid all this catastrophe, we continue building new infrastructure to prop up a fossil fuel industry, barreling us toward one climate disaster after another. The most egregious example at the moment is energy company Enbridge’s Line 3 project. Intercept reporter Alleen Brown and attorney and founder of the Giniw Collective Tara Houska join Ryan Grim to discuss Line 3. It’s a massive pipeline that snakes across the Canadian border, through Minnesota wetlands, and under the Mississippi River, all so it can transport tar sands oil — the dirtiest of the dirtiest energy — to be refined and, for much of it, exported.
Ryan Grim: We have just gone through one hell of a brutal week. This is Deconstructed.
Newscaster: President Biden will go to Louisiana on Friday to survey the damage left behind by Hurricane Ida. At least four people were killed and a million left without power when the Category 4 storm swept through New Orleans on Sunday.
Newscaster: Hundreds of thousands remain without electricity, air conditioning, or tap water for the third straight day.
Newscaster: Officials are scrambling to supply water and food as a heat warning is in effect.
Newscaster: New images of an apparent tornado ripping through Annapolis, Maryland.
Newscaster: Tornado watch was issued in New York City —
Newscaster: Flood warnings, they’re in place from New York City all the way into Maine —
Newscaster: Death and destruction in Tennessee. There’s over 400 millimeters of rainfall in just 24 hours. A new state record.
Newscaster: High risk alert for flash flooding in much of the Northeast tonight —
Newscaster: The National Weather Service issued a flash-flood emergency for the first time ever in New York City.
Newscaster: Over in Brooklyn, cars were submerged under water —
Newscaster: Rescue crews work to save drivers trapped in the floods.
Newscaster: From the Nevada side of that fire, you can see the skies are gray with all of that smoke in the air. The fire has been burning for 19 days now in El Dorado County and Amador County.
Newscaster: Now to the latest on the Dixie Fire. This is still burning. It’s the second largest fire in state history. It’s been burning for seven weeks now.
RG: None of this is sustainable. Something has to give. And, so far, what’s giving way is the predictable climate we’ve depended on for centuries.
Now for decades, the leading argument against doing anything to confront climate change was that it would be too expensive and cost too many jobs. That was always dubious on its face. But now, even on its own merits, the argument is drowning.
Nothing could be worse for our economy and our standard of living than a world engulfed in flames, floodwaters, and tornadoes.
Yet the Democratic response this week has been almost worse than meaningless.
On Thursday, West Virginia Sen. Joe Manchin took to the editorial page of The Wall Street Journal to argue for a “strategic pause” on the party’s $3.5 trillion reconciliation package, which is heavy on climate investments: “Ignoring the fiscal consequences of our policy choices will create a disastrous future for the next generation of Americans,” wrote Manchin.
That he wrote that line without irony, while California was on fire, Louisiana molding and plunged into darkness, and parts of the Northeast literally underwater is truly extraordinary. How can he seriously talk about a disastrous future for the next generation while this very generation is living through one disaster after another?
He goes on: “For those who will dismiss my unwillingness to support a $3.5 trillion bill as political posturing, I hope they heed the powerful words of Adm. Mike Mullen, a former chairman of the Joint Chiefs of Staff, who called debt the biggest threat to national security.”
Now debt, to be clear, is not a national security threat. In fact, our ability to carry the debt and sell it to foreign countries and foreign investors is actually a source of our imperial power. But Manchin is not being serious. He knows that isn’t a national security threat — otherwise, he wouldn’t have voted for trillions of dollars for war and wouldn’t vote for ever-increasing military budgets. The actual threat that debt represents for somebody like Manchin has to do with taxes. Because he and other debt hawks have spent decades demanding all government spending be “paid for.” Now that Democrats plan to spend trillions of dollars, they also plan to tax the rich and raise corporate tax rates to do so. Believe it or not, that’s not terribly popular with the rich.
Manchin has expressed a real openness about raising taxes on corporations and on the rich, partly because he’s bitter about how Mitch McConnell rammed through his tax cut in 2017 without including Manchin’s amendments. But his enthusiasm for those tax hikes only goes so far, and it doesn’t reach $3.5 trillion.
There’s something else going on too, as Daniel Boguslaw reported for The Intercept on Friday in a story I’d encourage you to read: Manchin’s company brokers coal. He made his fortune in the coal industry and continues to earn income of some $500,000 dollars a year from his coal empire, which is officially run by his son Joe Manchin IV. In other words, the bulk of Joe Manchin’s current income is tied to the very industry at risk of shutting down as we transition to clean energy.
And nobody wants to give that up — amid all of this catastrophe, we continue building new infrastructure to prop up the fossil fuel industry, with the most egregious example being the energy company Enridge’s project called Line 3, a massive pipeline that sneaks across the Canadian border, through Minnesota wetlands, and under the Mississippi River. Also it can transport tar sands oil, the dirtiest of the dirtiest energy, to be refined and — for much of it — exported. It is, quite literally, pouring gasoline on the fire.
This weekend, members of the Squad will be traveling to the construction site to join the protests, which will surely bring in some more attention. Rep. Ilhan Omar from Minnesota will be joined by Rep. Ayanna Presley, Rep. Rashida Tlaib, and Rep. Cori Bush. Rep. Alexandria Ocasio-Cortez will appear remotely because her district is underwater.
Today, we’ll be joined in a moment by Tara Houska, an attorney and an activist who has been on the ground in Minnesota for years fighting the project.
But first, we talked with Intercept reporter Alleen Brown, who herself has been on the pipeline beat for years, from Keystone XL to Dakota Access, and now to Line 3.
Alleen, welcome to Deconstructed.
Alleen Brown: Thank you so much for having me.
RG: So, first of all, can you talk a little bit about where this project is being constructed?
AB: Sure. So Enbridge’s Line 3 pipeline is being constructed through northern Minnesota. And it links the tar sands oil fields of Alberta, Canada, to this kind of transport hub in Wisconsin that’s right on the other side of the border from Minnesota. So the bulk of this project is Minnesota.
RG: And so when they call it Line 3, they talk about it as a replacement for a previous Line 3. Is it that simple? Is it an old corroded pipe that they’re just swapping in a new one? Or is something else going on here?
AB: There’s a lot more to it than that.
I mean, the biggest thing to understand about that replacement framework is that much of the pipeline that’s being put in is going through new land. That’s in part because the Leech Lake Reservation, the tribe there, the Ojibwe tribe, did not want the pipeline to go through that reservation. So Enbridge is rerouting the line through new land, through many new waterways, and it is a significant expansion. I think capacity will double.
RG: And so what other treaty lands is this going through? And could that complicate Enbridge’s strategy?
AB: Yes. I mean, it already is complicating Enbridge’s strategy. There is one additional reservation through which the pipeline passes, that’s the Fond du Lac Reservation. That tribe initially fighting the pipeline was against it. But after a lot of negotiation with the company, Fond du Lac ended up getting on board. We don’t know the details of that agreement, but it seems to involve a lot of money.
There is a big chunk of land in northern Minnesota that is not reservation land, but that Ojibwe tribes have treaty rights to. This land is land where they have rights to hunt, and fish, and gather, and travel. And the U.S. government does have an obligation to consult with those tribes before it allows any company to put a pipeline through it. Multiple tribes that have rights to that land have been fighting the pipeline in court, have been fighting the U.S. government in court, attempting to get this permit revoked — have essentially argued that they were not properly consulted, and that they do not consent to this pipeline.
RG: So a previous version of this Line 3 pipeline famously produced, what is, I believe, the largest inland oil spill in U.S. history, back in 1991. Was that in Minnesota? Can you tell us a little bit about that 1991 spill and how that plays into the fight over the reconstruction of a new pipeline?
AB: Yeah, that was in Minnesota. And, at the time, I don’t think it got the same kind of publicity that it would today. You know, the oil spilled into wetlands, and it was a major spill.
And this isn’t the only major spill that Enbridge has been responsible for. The company also famously spilled a lot of oil into the Kalamazoo River. I’d have to look to see what year that was.
RG: I think it was 2010 —
AB: Yeah, in 2010.
RG: About 10 years ago. Yeah.
AB: Yep. Yep. Yep. So the company has this history of really catastrophic oil spills. In Kalamazoo, this tar sands oil kind of sunk to the bottom, was really a disaster to clean up. And so it carries that reputation as it drills under rivers and waterways in Minnesota right now.
RG: And so, you heavily covered the protests out at Standing Rock; you’ve been covering the protests here. What are the similarities and differences between these two fights?
AB: I would say that both sides have learned a lot from Standing Rock as the Line 3 project is built in Minnesota. And to really understand the way law enforcement and Enbridge are responding to Line 3 opponents, you have to look back at Standing Rock, because all of their tactics are kind of adjusted to avoid some of the things that happened there. Whether or not that’s working, I’m not so sure.
RG: And what do they think they did wrong in Standing Rock? Because they effectively lost that fight to the pipeline protesters.
AB: Right. What they appear to be most concerned about is: A. the amount of money law enforcement and public agencies spent responding to Standing Rock, and B. the reputational blow that some of the tactics that were used caused.
I got a copy of this Standing Rock after-action report that North Dakota agencies put together. And it was striking to me because there was not a lot of reflection, actually, around the use of tactics like water hoses in below-freezing weather. There was more reflection on how to better utilize drone footage, or how to win information battles.
So I don’t know that the lessons learned were that violent tactics need to be avoided. But it was more like: How do we look better? And: How do we avoid spending so much money?
And as the Line 3 permit was going through, both those questions came into play, and were put into the permit.
RG: How so? So how do those twin goals play out in Line 3?
AB: So as these hearings were being conducted to form the most important permit that would advance the project, members of the Minnesota Public Utilities Commission referred back to what they called counterinsurgency tactics a couple of times. They seemed particularly concerned about the activities of the private security firm TigerSwan, including infiltration, so they had people going into protester groups and posing as pipeline opponents in order to gather information.
It’s clear that at least one Utilities Commission member was worried about that [and] said he wanted to protect First Amendment rights. So this line was placed in the permit that says the permittee, the permittee’s contractors and assigns will not participate in counterinsurgency tactics or misinformation campaigns to interfere with the rights of the public to legally exercise their constitutional rights.
A lot of people have argued that another element of this permit conflicts with that item.
RG: How so?
AB: So, in order to avoid the millions of dollars spent in North Dakota, this special account was set up. So this escrow account was created so that Enbridge could pay for policing expenses and for other kinds of public safety expenses. And the way it works is that a law enforcement agency doing additional work that it wouldn’t normally be doing related to the pipeline can submit a reimbursement request to this account; a public official hired specifically for the job looks at that request, approves or denies it, and then Enbridge pays for it.
RG: So Enbridge has hired the police in Minnesota.
AB: Yeah. I mean, that’s how many, many people see it. Enbridge is directly paying for many of the activities that law enforcement are conducting to quell resistance against this pipeline.
RG: And so what’s the loophole that people think is created by that that would allow counterinsurgency-type tactics?
AB: I think one of the important things about this permit is that counterinsurgency tactics, that term, is never defined. But if you look at what counterinsurgency really means, if you look at the U.S. government’s definitions of counterinsurgency, if you look at scholarly definitions of counterinsurgency, it’s not just about infiltration and human intelligence; it’s not about armed force; it’s about winning the loyalty of local institutions against opposing forces and getting those local institutions to do your work.
RG: Hearts and minds.
AB: Exactly. Exactly. It’s how, if you look at the way counterinsurgency advisors to the U.S. during the wars in Iraq and Afghanistan, the way they talk about counterinsurgency, they talk about roadbuilding, they talk about supporting the development of a police force, supporting neighborhood watch groups, offering people jobs, and so paying directly for the police, many argue, kind of fits into that umbrella of counterinsurgency tactics and is just one of many things that could be called counterinsurgency tactics that Enbridge is engaging in.
RG: So on that front, you have a new story about even deeper collaboration between Enbridge and the Minnesota police. What did you find?
AB: So I found that not only was Enbridge providing a fair amount of training to law enforcement in the months leading up to the start of construction, but a pretty close coordination was developed between police and the pipeline company. So one document I received via a public information request showed a public safety official inviting Enbridge’s Line 3 security chief to regular intelligence-sharing meetings. In the email, he says: We missed you at our 9 A.M. intel meetings. Is there another time that would work better for you? This guy is saying that he will rearrange this intelligence sharing space so that an Enbridge official can participate.
The day after that email, you have the same official forwarding a list of attendees to a Line 3 organizing a meeting of pipeline opponents to a group of officials that includes this Line 3 security boss. So essentially public safety officials in Minnesota are sharing intelligence including the names of people attending anti-Line 3 meetings directly to Enbridge, which is these people’s political opponent.
RG: So what are the police up to? I’ve been hearing some scattered reports of heightened tension and amped up militarization of the police there. Are we starting to see more violence coming from the Enbridge Pinkertons who are the Minnesota police?
AB: Yeah, so I think that the level of violence and pressure has definitely increased as the months of construction have gone on. Aerial surveillance has been conducted for many months. It’s something that pipeline opponents, known as water protectors, have noticed going back months. There’s also been a lot of attempts to pull people over for low-level infractions, which some have described as an attempt to gather identity information. And more recently, there’s been use of quote-unquote less lethal weapons, such as rubber bullets, to halt water protector activity this summer. A Department of Homeland Security helicopter flew really low over a direct action against the pipeline, kind of sending clouds of dust scattering over the water protectors.
And there’s also been some attempts at some kind of territorial control. There’s actually a number of pipeline resistance camps. There’s one that has been particularly involved in direct action. And one of the sheriff’s offices moved to block the camp’s driveway, claiming that this little bit of land that the driveway passed through was actually county land, and they didn’t have a right to use it. So they’re like: Oh, yeah, you can access your land, you just have to figure out somewhere to park and walk there. So there’s been a range of pressures that law enforcement has put on water protectors.
RG: So that this is Minnesota. And so I imagine it is going to be tough for them to continue construction all winter. What is Enbridge’s plan in the coming months?
AB: I mean, they say they are very close to completing construction. Recently they claimed that they could have that thing running next month. So these are really the late stages of this resistance and this project. And people are really saying that if there’s a moment to stop it, it’s now. Or the thing will be pumping oil very soon to the detriment of the climate and the health of the lands and waters of Minnesota and elsewhere.
RG: Is there any indication that the Biden administration is engaged on this?
AB: I believe that water protectors have engaged with the Biden administration throughout construction. But, so far, they have not given strong signals that they will be standing against this.
In some of the legal efforts that tribes have made to stop the pipeline, the U.S. government has supported the permits that were handed out, I believe, during the Trump administration. So, so far there’s no signal from Biden that he will be stepping in here.
RG: A number of members of the Squad are headed up this weekend. Is this coordinated with any kind of bigger action or is this just a handful of progressive members of Congress going there?
AB: I mean, I guess I would say that there are just constant actions happening in Minnesota right now and people are using a range of tactics. In the past week, people were holding protests and sit-ins in Minnesota’s capital of St. Paul, as well as, I believe, in Washington D.C. There’s constant lockdowns and road blockages, and attempts to stop construction in northern Minnesota.
So I guess I would be surprised if there’s no action happening up there this weekend. But I’m not sure if there’s something specifically centered on the Squad.
RG: Are you in New York right now?
AB: I am in New York, yes.
RG: How’s your neighborhood? From what whipped through there?
AB: So the block surrounding my apartment is fine. There hasn’t been too much flooding. But just looking at videos of communities a few blocks away, the streets look like rivers. Friends, just a 10-minute walk away, had water pouring into their home. We’ve really been hit hard here.
RG: And how are the subways?
AB: I don’t believe they are functioning much right now. Most of the people I know who would normally be commuting are not. And yeah, all through last night water was pouring in. So yeah, it’s pretty hard to travel right now.
RG: Well, it’s good that we have a pandemic in the midst of this biblical flooding so that there were fewer people on the subways as it filled up.
AB: Yeah, I guess that’s some kind of silver lining. [Laughs.]
RG: Alleen, thank you for joining us.
AB: Yeah, thank you so much for having me.
RG: That was Alleen Brown.
RG: Tara Houska, a member of the Ojibwe people was the Native American adviser to Bernie Sanders’ 2016 campaign and has been protesting Line 3 for years now in northern Minnesota. Tara’s out in the woods, and we had a couple of connection issues, but mostly got through it fine. Tara, welcome to Deconstructed.
Tara Houska: Thank you so much for the invitation.
RG: Yeah, so where are we talking to you from?
TH: Namewag camp which is held by Giniw Collective. We’re about 200 yards off the proposed Line 3 route.
RG: So can you describe for us what exactly is going on? What kind of shovels, what kind of equipment is in the ground as we speak?
TH: Actually, most of Line 3 has been either put into the ground or is the process of being put into the ground. There are still excavators all over the place. A lot of equipment that’s working on pump stations to electrify the lines, because tar sands is a sludge that requires an enormous amount of electricity to send it through a pipe. There are security trucks everywhere, out-of-state workers everywhere, and a ton of cops.
RG: This project has been going on for an awful long time. How did you eventually get involved with opposition to it?
TH: Yeah, I’ve actually been involved in this campaign against Line 3 for 7 years at this point. Started out when it was the portion that is the transnational crossing from Canada into the United States, to then the Sandpiper project, which ended up being suspended, and then Enbridge put its money towards the Dakota Access Pipeline, was involved in that struggle very heavily and, in the meantime, knowing that Line 3 was kind of always on the back burner and making its way through the regulatory process and being rebooted into what it is now.
RG: What is it now? The company says: Hey, we’re just replacing an old pipeline. Nothing really to see here. But what do you see there?
TH: I mean, what I see is the old Line 3 has an enormous amount of damage that it’s caused over the years of its operation, leaks all over the place, integrity digs that Enbridge did before it began constructing Line 3 with tar sands right underneath the surface of the soil and huge plumes that were underneath all of the land that it was passing through, which the company tried to spin into: oh, well, that’s why we need to replace it! But it’s not really a replacement. What it is is a brand new project. It’s in a brand new location; a brand new route. It’s through untouched ecosystems — 800 wetlands, 200 bodies of water, 22 rivers, the headwaters of the Mississippi River is included in that. It wants to build a new corridor — a new pipeline corridor.
RG: So about two weeks ago, there was a pretty significant demonstration that saw the police there kind of ramping up the violence against protesters. What happened there? What led up to that?
TH: As far as police brutality goes, the police brutality has been much more significant on the actual line itself. We are out of sight, out of mind and that’s kind of the idea behind putting a lot of these projects through indigenous treaty territories is we’re not at all factored into, I guess, it’s fine for our homes, fine for our people but not other places — similar to Dakota Access Pipeline where it wasn’t OK to send it through Bismarck, it was okay to send it through right next to the reservation. So about a month ago, myself and several others, a large group of us were fired at with less lethal ammunition that was paid for by Enbridge, wielded by a police officer up in 1863 Treaty territory. That was followed by sheriffs engaging in use of pain compliance, which is essentially torture, on water protectors. That has been an ongoing tactic over the last few weeks.
RG: What do they mean by that euphemism, “use of pain compliance”?
TH: I mean a dislocated someone’s jaw. So that’s happened.
RG: But “use of pain”? Like they’re saying that they’re going to extract compliance by causing pain?
TH: People are immobilized, chained to a machine or whatever it happens to be, and rather than going through the extraction teams, which has been the case with hundreds of non-violent blockades up to this point, some sheriffs have taken it upon themselves to instead immediately engage in use of pain and trying to get people to unclip, telling one person, “I will stop hurting your friend if you unclip.” And they can hear their friend screaming on the other side of them because a sheriff is hurting them. That’s what’s been happening up on the line.
RG: You were hospitalized recently, as a result of police violence. Can you tell me a little bit about what led up to that and what happened there?
TH: I was shot up by police officers with rubber bullets and mace who were firing at us at point-blank range. They split open someone’s head right in front of me, shot another person directly in the heart, I was shot several times. My injuries were such that when I made it to the jail, when I was brought to Pennington County, the police officers and the EMTs ended up bringing me to the hospital to get checked out. And I was told by the physician that my injuries were consistent with the injuries inflicted upon me, and sent to jail, and ended up being in solitary, in a jail cell by myself for four days without medical care after that.
RG: How are you now?
TH: I mean, I haven’t been hurt as much as some other people have been hurt. Some of the folks that experienced pain compliance have what might be permanent facial paralysis and damage, something they’re calling Bell’s [alsy or whatever. And I have some scar tissue and one of the hits was pretty intense, but these harms that are being enacted on people’s bodies that are engaged in nonviolent resistance are disgusting and appalling — gross violations of human rights.
RG: How much time do you think you have to stop this pipeline?
TH: It’s to the point now of the construction of the line being almost complete, there has been a very intense resistance on the ground that has finally garnered more national attention and has resulted in some pressure points from legislators and celebrities and that sort of attention on this particular project.
The realities of the situation, I think, are starting to really catch up to people and hit them in a place that they really feel and realize the gravity and intensity and the urgency of the climate crisis. So I do think there is opportunity to intervene and to make a different decision that was made in Dakota Access, which was: We’ll let oil flow and years later, the tribes will win in court because we should have considered their tribal cultural resources, and we should have considered climate crisis, and we should have ordered an environmental impact statement. That’s exactly the same things that are being asked for here in the Line 3 fight: an environmental impact statement and consideration of tribal cultural resources and environmental impacts.
RG: You said something that I didn’t realize, that it takes a lot of energy to push tar sands oil through the pipeline. I think, I assumed, probably like most people who don’t know and don’t have any idea what they’re talking about, that it just uses gravity and it just flows downhill. But that’s not the case. So what is the process that pushes tar sands oil through this pipeline?
TH: Yeah, tar sands is a sludge. So it’s not like crude oil — sweet crude as I guess the industry would call it — or like fracked gas or some of those other fossil fuels. Tar sands is actually a sludge. It’s processed. It’s it’s ripped out of the ground in the form of bitumen and clay and processed with chemicals to make it into not quite fully viscous, but at least a substance that can be moved through a pipe, which is then electrified, and there’s these massive, massive pumping stations that are pushing and causing huge pressure to the line. So it’s a highly pressurized line.
RG: Is that what makes them less stable, and more likely to spill?
TH: There’s all kinds of different pieces of that. I mean, there’s the reality that pipes corrode faster when they’re underneath power lines. And Line 3 requires the energy that is the equivalent of all the nuclear energy currently in the state of Minnesota.
TH: That’s how much energy we’re talking about. It is the most energy intensive form of so-called energy in the world. It’s called the dirtiest fossil fuel in the world for a reason. It’s incredibly carbon intensive.
Line 3 is the emissions equivalent of building 50 brand-new coal fired plants. That’s what we’ve been saying. There’s no way that this would pass any climate test in any semblance of a review. And that just hasn’t been considered here, because it’s been a state-level environmental impact statement. And they’ve considered it in like the little chunk that it is. And there’s still been incredible division, even among the state. So, Minnesota’s Department of Commerce actually sued Minnesota’s Public Utility Commission saying that Enbridge didn’t prove its need for the line. They couldn’t justify the oil forecast to build it through the wetlands.
RG: What has your interaction with the White House been on this? Are they taking this seriously?
TH: It has been a situation in which there have been doors open due to the enormous amount of pressure from people on the ground, and from this growing understanding in North America of just how deep we are in the climate crisis.
I’ve been on several calls with Gina McCarthy and with the Army Corps of Engineers and the Council on Environmental Quality, the EPA, you name it. They’ve been at least pressured into having a conversation. And the Army Corps of Engineers actually physically have been out here twice in Minnesota. They are deeply concerned about civil unrest; they are deeply concerned about smearing Biden’s climate presidency, I think. But it seems to me that because there are so many other issues also occurring that there’s been a political calculation of: We’ll cancel Keystone XL, we’ll let Line 3 through, and ignoring indigenous sovereignty all the way along, ignoring the treaty rights of my people and the cultural genocide that would take place if wild rice is wiped out of this portion of the territory. I mean, this is part of who we are as people.
RG: Can you talk about those two things? In particular, it does seem like there’s — finally — from the courts at least some willingness to take treaty rights seriously in a way that there wasn’t even in the recent past? Is that a potentially fruitful lane?
TH: Yeah. And I think that’s been like the response in other struggles similar to this one, like Dakota Access, where you’ve got a court that says: Yeah, the tribes were right and these pieces should have been considered, and they weren’t. And now, what are we supposed to do? What’s the reparation for the harm that was caused?
RG: Do you know the background to how that legal shift evolved in the second part of the 20th century, people would say: Well, yeah, it’s cute that there were treaties. But we have abrogated those, and that’s a real shame, and we’re very sorry for that. But that’s history. We can teach it in third grade, and we can all move on to a place where people are like: No, no, no, actually, this is this is written down, the United States government agreed to this, this is just as binding a law as a law that was passed by Congress in 1872, or 1888, or 1842. So how did that kind of legal evolution take place?
TH: I mean, a couple of things. I would say like the tendency to discard law as ancient and old when regularly citing the First Amendment, the Second Amendment from the Constitution is a pretty —
RG: Right. Rather selective there.
TH: The Second Amendment is like on the back of bumper stickers on people’s vehicles, and like, it’s something that everyone in this country understands, but yet you bring up treaties that were assigned to create this country, and the land sessions that did create this country, and everyone’s like: Oh, well, that was a long time ago.
RG: [Laughs.] Mhmm.
TH: I would say like what I’ve observed over time of studying federal Indian law, and practicing, and now being a advocate for a number of different issues, involving native people, the ripples and effects of the murder of George Floyd and the culmination of racial justice, like those ripples are still reaching out. Right after that time was when we saw a Supreme Court say words along the lines of: Just because we’ve broken treaties for a long time doesn’t mean we should continue to do it. So I think there’s a lot of pressure that’s being realized and actualized into the readings of the law because federal Indian law, in particular, has been really really frenetic and precedent doesn’t really seem to be something that is absolute in this particular area of law either. Every other place, there’s like at least some sort of precedent, something that you follow. In federal Indian law it’s: You never know what you’re gonna get.
RG: And so if the treaties actually are followed in the path of this pipeline, what are the legal implications of that?
TH: If these treaties were followed in this, the Ojibwe people have a right to not only usufructuary rights like hunting and gathering, there’s also a specific right to wild rice. This pipeline, just on its construction alone, has harmed and affected the water quality.
Water quality is so critical when it comes to the survival and life of wild rice. It’s also been a situation in which the Minnesota Department of Natural Resources, their DNR, approved Enbridge to take 5 billion gallons out of the watershed — 5 billion gallons of water. That is an insane amount of water, during a drought. An extreme drought. A lot of the wild rice beds are empty. The lakes are empty. It’s really hard to put into words what it’s like to see an empty lake that’s now a field. And I’ve witnessed that in several different places at this point, to see wild rice where people are portaging way, way, way out to the middle to even be able to float in a canoe. The harm is there.
And that’s before any sort of spill. They’ve been spilling chemicals, there’s been 28 spills of chemicals already during construction of this line and I can only imagine what it’s going to look like when tar sands starts leaking into the watershed, which is what these pipelines do, they leak.
RG: And so it feels kind of open and shut in a sense that it’s specifically listed there in the treaty, that it specifically abrogates it, quite obviously, quite plainly. The United States legal system is now paying some actual attention to treaty rights. Has that argument carried any weight? Or are you only getting people’s attention when you talk about climate change and broader environmental destruction?
TH: The issue with the judiciary route is that it takes a really long time. So there’s the state-level arguments, which don’t include a lot of those pieces. And then there’s the federal district court, which does include those pieces, right? Because then you’re involving federal defendants and federal obligations. And so a lot of those issues have not been considered.
Again, I would turn to Dakota Access, which is a much more prominent struggle, I guess, in a lot of environmental circles. The Standing Rock Sioux people didn’t get their rights heard until years after the flow of oil through the Dakota Access Pipeline.
It’s only been during this Biden administration that there’s been a finality, which is yeah, the tribes were right. But the judiciary decided it doesn’t have the authority to shut the oil flow down and it’s on the Army Corps of Engineers, Biden’s Army Corps of Engineers, to shut it down. Biden’s Army Corps of Engineers declined to intervene. And so the pipeline is operating illegally. And everyone’s pointing at everyone else saying: Well, it’s not my obligation to enforce the ruling. Whose is it, at that point?
RG: What is the thing that needs to happen at this point to stop this project? Like, what’s the thing if you woke up and heard on the news: x happened? Is it Biden stepping all the way in? Is it at that level at this point?
TH: Well, as I said, Jamie Pinkham at the Army Corps of Engineers, he’s the Assistant Secretary who has been out here twice. He’s also a tribal member. He just got called on by the Red Lake tribal chairman through an op-ed. He can suspend the project tomorrow, if he wants to. He could suspend the project today by suspending the water crossing permits, and ordering a review. That could happen right now.
President Biden could intervene easily. [He] could say: Here’s the executive order, and the authority. It already exists to order an environmental impact statement. That’s exactly what Obama did when the Dakota Access Pipeline was so fiercely resisted.
Gov. Walz could weigh in at any point; he has not said a thing during the course of this, was out at the Minnesota State Fair judging the butter-sculpting contest while hundreds of police officers and troopers were surrounding teepees on the Mall in front of the Capitol and water protectors that were in front of his mansion. I mean, there’s things that can be done by these decision makers, but they have to be brave to do it. And so far, we’ve seen absolutely nothing in that arena.
RG: So with the Squad coming out this weekend, do you think that will bring in enough attention? O where are you on the optimism-pessimism spectrum?
TH: I think it’s every single lever, every single avenue, and these are folks who are very progressive and are possessing of large platforms of people that will bring attention inevitably to this project and to the ongoing struggle that’s been in place. And there are hundreds of nonviolent direct actions that have occurred, thousands of hours of regulatory review and educational materials and all the things. So there’s a wealth of resources there for people to learn about this. And hopefully Biden feels that pressure, and Jamie Pinkham feels that pressure, and Gina McCarthy feels that pressure and they realize we’re not going away. And we haven’t this entire time.
RG: Well, Tara, thank you so much for joining us. I really appreciate it.
TH: Yeah. Thank you so much, you guys.
RG: That was Tara Houska. And that’s our show.
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