Judge won’t stop DAPL work, but new legal challenge emerges

By Patrick C. Miller | February 15, 2017

Legal efforts by two Sioux tribes to stop construction on the final segment of the Dakota Access Pipeline in south central North Dakota were dealt a temporarily blow Monday when a federal judge refused to grant a temporary restraining order.

However, the environmental organization EarthJustice on Tuesday followed up on that ruling by filing a motion on behalf of the Standing Rock Sioux Tribe for a summary judgement against the U.S. Army Corps of Engineers in the U.S. District Court for the District of Columbia.

According to EarthJustice, “The motion for summary judgment asks the judge to rule on major legal questions that have not yet been resolved during this case, including whether National Environmental Policy Act requirements have been met and whether the Corps’ actions violate the tribe’s treaty rights.”

U.S. District Court Judge James Boasberg has scheduled a hearing for Feb. 27 at which time arguments will be presented on the tribe’s motion.

Construction on the Dakota Access Pipeline restarted last week after the U.S. Army Corps of Engineers granted Texas-based Energy Transfer Partners an easement to cross the Missouri River. The company said it would take fewer than 60 days to complete a section of the pipeline that crosses under the Lake Oahe Reservoir of the Missouri River just north of the Standing Rock Sioux Reservation.

On Wednesday in Washington, D.C., the Energy Subcommittee of the U.S. House Energy and Commerce Committee heard testimony during a hearing on modernizing energy infrastructure. Testifying on the Dakota Access Pipeline were Chad Harrison, councilman at-large with Standing Rock Sioux Tribe, and Joey Mahmoud, project executive for the Dakota Access Pipeline and executive vice president of Energy Transfer Partners.

Harrison told the subcommittee that before the pipleine project started, there was no meaningful consultation between the tribe, Energy Transfer Partners and the Corps of Engineers. He also said the tribe bore the greatest risk in the event of a pipeline leak and received the least benefit from it.

“If the shoe were on the other foot, how would you react?” Harrison asked. “Whenever this oil starts to pump through the pipeline, our county will have the smallest tax revenue from it. We have no workers on this pipeline and we’re right there. The economics don’t benefit us, but yet we bear the greatest risk.”

During his testimony, Mahmoud said that Energy Transfer Partners and the Corps tried on sixteen different occasions to meet with the tribe, but it “declined to participate in any meaningful way.” He added that he had engaged in discussions about the pipeline with David Archambault, the tribe’s chairman. Mahmoud also said the company had hired an independent tribal liaison in an effort to improve communications.

When asked what Congress could do to improve the regulatory process for energy infrastructure projects, Mahmoud answered, “It all boils down to predictability in the process as long as it’s fair to all sides. We need predictability and finality. It was very devastating to our company when work was halted.”

During his remarks, Congressman Kevin Cramer, R-N.D., challenged Harrison’s statement that the Dakota Access Pipeline wasn’t routed north of Bismarck, North Dakota, because residents there objected. Cramer noted that a refined products pipeline from the Tesoro oil refinery already crosses the Missouri River along the north side of the city.

At the camp sites established by protesters near the Dakota Access Pipeline route north of the Standing Rock Sioux Reservation, there are new concerns that rising temperatures and an early thaw could create an environmental catastrophe downstream from the sites.

North Dakota health and water officials issued a statement which said they were worried that not enough progress was being made to remove waste and hundreds of abandoned cars before the campsites were inundated by water.

“Camp conditions are quickly deteriorating due to rapid spring melt and runoff. These wet conditions when combined with human waste and trash are creating a potential public health and environmental disaster,” the statement said.

North Dakota Gov. Doug Burgum said, “Immediate action is needed to protect human life and prevent any further pollution of the Missouri and Cannonball rivers. Today’s assessment by the Army Corps of Engineers is crucial to accelerating the cleanup process so this land can be properly cleared of garbage, structures, vehicles and human waste before it washes into the rivers. We cannot afford to wait any longer.”