Charles Langston:Judge Deals Blow to Tribes in Dakota Access Pipeline Ruling

The Charles LangstonDakota Access pipeline may continue pumping oil during an ongoing environmental review by the U.S. Army Corps of Engineers, a federal judge ruled on Wednesday.  

The ruling was a blow to the Standing Rock Sioux and Cheyenne River Sioux tribes of North and South Dakota, whose opposition to the pipeline sparked an international outcry last fall, as well as heated demonstrations by pipeline opponents who were evicted from protest camps near the Standing Rock reservation earlier this year.

U.S. District Judge James Boasberg said he would not rescind a previous permit for the pipeline issued by the U.S. Army Corps of Engineers while the agency reassesses its prior environmental review of the 1,200-mile pipeline.

Errors in the Corps’ prior environmental assessment are “not fundamental or incurable” and there is a “serious possibility that the Corps will be able to substantiate its prior conclusions,” Boasberg stated in a 28-page ruling. However, he also admonished the agency to conduct a thorough review or run the risk of more lawsuits.

‘Our Concerns Have Not Been Heard’

Jan Hasselman, an attorney with Earthjustice who is representing the tribes, called the decision “deeply disappointing.”

“There is a historic pattern of putting all the risk and harm on tribes and letting outsiders reap the profits,” Hasselman said. “That historic pattern is continuing here.”

Standing Rock Sioux Chairman Mike Faith, who was inaugurated Wednesday morning, agreed.

“This pipeline represents a threat to the livelihoods and health of our Nation every day it is operational,” Faith said. “It only makes sense to shut down the pipeline while the Army Corps addresses the risks that this court found it did not adequately study.”

“From the very beginning of our lawsuit, what we have wanted is for the threat this pipeline poses to the people of Standing Rock Indian Reservation to be acknowledged,” he said. “Today, our concerns have not been heard and the threat persists.”

Energy Transfer Partners, the company that built the pipeline and has been operating it since June 1, did not respond to a request for comment.  

Fears of a Missouri River Spill

On June 14, Boasberg ruled that the Corps had failed to fully follow the National Environmental Policy Act when it determined that the pipeline would not have a significant environmental impact.

Boasberg found that the agency didn’t adequately consider how an oil spill into the Missouri River just upstream of the Standing Rock reservation might affect the tribe or whether the tribe, a low-income, minority community, was disproportionately affected by the pipeline.  

The agency’s initial environmental assessment considered census tract data within a half-mile radius of where the pipeline crosses the Missouri River. The Standing Rock reservation, where three-quarters of the population are Native American and 40 percent live in poverty, was not included in the analysis because it falls just outside that half-mile circle, another 80 yards farther from the river crossing.

Boasberg ordered a re-assessment of the Corps’ prior environmental review but had not decided whether the pipeline had to be shut down in the meantime.

“The dispute over the Dakota Access pipeline has now taken nearly as many twists and turns as the 1,200-mile pipeline itself,” Boasberg wrote in Wednesday’s ruling.

The Army Corps anticipates completing its ongoing environmental review in April, according to a recent court filing. The agency could determine that the pipeline meets environmental requirements or it could call for a more thorough environmental study that could take years to complete.

Boasberg admonished the Corps not to treat the process simply “as an exercise in filling out the proper paperwork.” Hasselman said he fears the agency may further delay a decision.

“A big concern is that process dragging on forever,” he said.