Judge al­lows Dakota Ac­cess pipe­line to keep run­ning

The Oklahoman - - ENERGY - BY BLAKE NI­CHOL­SON

BIS­MARCK, N.D. — A fed­eral judge ruled Wed­nes­day that the Dakota Ac­cess oil pipe­line can con­tinue op­er­at­ing while a study is com­pleted to as­sess its en­vi­ron­men­tal im­pact on an Amer­i­can In­dian tribe.

U.S. District Judge James Boas­berg’s de­ci­sion will come as a blow to the Stand­ing Rock Sioux, who have ar­gued that an oil spill from the pipe­line un­der Lake Oahe — from which the tribe draws its water — could have a detri­men­tal ef­fect on the tribal com­mu­nity.

“To­day’s de­ci­sion is a dis­ap­point­ing con­tin­u­a­tion of a his­toric pat­tern: Other peo­ple get all the prof­its, and the tribes get all the risk and harm,” said Jan Has­sel­man, an Earthjus­tice at­tor­ney rep­re­sent­ing the tribe in an on­go­ing fed­eral law­suit through which Stand­ing Rock and three other tribes still hope to shut down the pipe­line.

Boas­berg found that it is likely the Army Corps of En­gi­neers will be able to jus­tify pre­vi­ous de­ci­sions made while per­mit­ting the pipe­line.

“The Corps must sim­ply con­nect the dots,” he said. “This, then, is not a case in which the agency must redo its anal­y­sis from the ground up.”

Boas­berg also ac­knowl­edged that shut­ting down the pipe­line would dis­rupt the en­ergy in­dus­try, but said it wasn’t a ma­jor fac­tor in his de­ci­sion.

The $3.8 bil­lion pipe­line built by Texas-based En­ergy Trans­fer Part­ners has been op­er­at­ing since June 1, mov­ing oil from North Dakota through South Dakota and Iowa to a dis­tri­bu­tion point in Illi­nois. From there it can be shipped to the Gulf Coast and po­ten­tially lu­cra­tive mar­kets abroad. It has the ca­pac­ity to move half of the oil pro­duced daily in North Dakota, the na­tion’s sec­ond-lead­ing pro­ducer be­hind Texas.

En­ergy in­dus­try of­fi­cials ap­plauded Boas­berg’s rul­ing, with North Dakota Pe­tro­leum Coun­cil Pres­i­dent Ron Ness call­ing the pipe­line “a crit­i­cal part of Amer­i­can en­ergy in­fra­struc­ture.”

The Jus­tice Depart­ment de­clined to com­ment on be­half of the Corps.

Has­sel­man said Boas­berg’s rul­ing isn’t ap­peal­able.

Pres­i­dent Don­ald Trump had pushed for the pipe­line’s com­ple­tion, and the Corps dropped a plan to con­duct more en­vi­ron­men­tal stud­ies af­ter he took of­fice.

Boas­berg ruled on June 14 that the Corps largely com­plied with en­vi­ron­men­tal law, but he or­dered the agency to re­con­sider cer­tain ar­eas of its anal­y­sis, and took ar­gu­ments on whether to shut down the 1,200-mile pipe­line while the work is done.

Boas­berg in June said the Corps didn’t ad­e­quately con­sider how an oil spill un­der the Lake Oahe reser­voir on the Mis­souri River in the Dako­tas might af­fect the Stand­ing Rock Sioux. The tribe is among four that have chal­lenged the pipe­line in court over en­vi­ron­men­tal fears that En­ergy Trans­fer Part­ners says are un­founded.

Gaug­ing the ef­fect on tribal com­mu­nity

The judge said the Corps also didn’t ad­e­quately study how the pipe­line might dis­pro­por­tion­ately af­fect the tribal com­mu­nity — a con­cept known as en­vi­ron­men­tal jus­tice. That aims to en­sure de­vel­op­ment projects aren’t built in ar­eas where mi­nor­ity pop­u­la­tions might not have the re­sources to de­fend their rights.

In its anal­y­sis of the Mis­souri River cross­ing, the Corps stud­ied the mostly white de­mo­graph­ics in a half-mile ra­dius, which the agency main­tains is stan­dard. But if the agency had gone an ad­di­tional 88 yards, the study would have in­cluded the Stand­ing Rock Reser­va­tion.

Boas­berg in his rul­ing Wed­nes­day said that is­sue was “a closer call” than the oth­ers, but that it still did not jus­tify shut­ting down the pipe­line. He noted that the tribe’s water in­take has been moved about 50 miles down­stream since pipe­line construction be­gan, and said an al­ter­na­tive river cross­ing near Bis­marck that had been stud­ied and re­jected would pass much closer to a drink­ing water in­take that serves tens of thou­sands more peo­ple.

“Risks pre­sented to this ten­fold in­crease in pop­u­la­tion must, of course, be con­sid­ered,” the judge said.

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