Court Orders Monitoring Of Dakota Access Pipeline After Keystone XL Spill

A federal court ordered the United States Army Corps of Engineers and Dakota Access to participate in multiple measures to monitor the oil pipeline constructed on land which under the 1851 treaty belongs to the Standing Rock Sioux tribe.

The U.S. District Court for the District of Columbia invoked the recent spill of 210,000 gallons of oil from the Keystone XL pipeline in Marshall County, South Dakota, to justify the need for court monitoring.

Judge James E. Boasberg wrote [PDF], “The spill occurred near the boundaries of the Lake Traverse Reservation, home of the Sisseton Wahpeton Oyate Tribe, thus highlighting the potential impact of pipeline incidents on tribal lands. Although the court is not suggesting that a similar leak is imminent at Lake Oahe, the fact remains that there is an inherent risk with any pipeline.”

Although the court refused to completely shut down the pipeline in October, it previously acknowledged “allowing oil to flow through the pipeline” would create “potentially disruptive” effects and could lead to incidents that may potentially “wreak havoc on nearby communities and ecosystems.” The court instructed the Army Corps, Dakota Access and Sioux and Cheyenne Tribes to finalize “spill response plans” for Lake Oahe. The plans are to be filed with the court by April 1, 2018, and directly related to the risk of a spill. Dakota Access was also ordered to complete a third-party audit of its compliance with permits and regulations. The court requested the company consult with the Tribes when selecting this auditor so that they may share their own data with the auditor during the process. The results of the audit are also to be complete by April 1. Finally, the court requested Dakota Access “file bi-monthly reports regarding the status of the pipeline during remand, beginning at the end of this month.” “With respect to this condition, the [Army] Corps contends that such reporting is ‘unnecessary’ and ‘unlikely to lead to any meaningful differences in the safety of the pipeline.’ Yet it never explains how additional information and transparency during the remand process would not enhance public safety and the court’s understanding of the facts on the ground.” “In light of Dakota Access’s agreement to ‘voluntarily’ report on many of the issues raised by the Tribes, there is similarly no concern that this condition will be unduly burdensome for the company.” The court order is the latest development in a lawsuit, which was remanded to the Army Corps for further environmental analyses of the impact of the Dakota Access pipeline.

Neither of the court-ordered measures were supported by Dakota Access or the Army Corps.

“The court clearly understands that oil spills present a grave risk to the people of Standing Rock and that additional measures are needed,” declared Jan Hasselman, attorney for the Standing Rock Sioux Tribe. “We look forward to participating in spill response planning and the independent audit, and will be watching closely to ensure that the new environmental review is not just another Trump administration rubber stamp.”

In June, Judge Boasberg found the Army Corps did “not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial.”

It was an important ruling against President Donald Trump’s administration and the way in which permits were issued to Dakota Access to complete pipeline construction across the Missouri River upstream from the Standing Rock reservation.

The Standing Rock Sioux Tribe regarded the development as a “major victory.”

Meanwhile, as Dakota Access fights efforts by the Tribes to achieve transparency to help them protect their land, the parent company of the Dakota Access project, Energy Transfer Partners, continues to pursue a lawsuit against Greenpeace and BankTrack for their activism against the pipeline.

Energy Transfer Partners views the dissent as “criminal activity” and a part of a “campaign of misinformation” intended to increase donations and advance a political or business agenda. They seek $1 billion in damages.

Attorneys for the advocacy organizations, however, insist that this is a baseless attack on the organizations’ First Amendment rights.