Judge orders DAPL builder to work with tribes on spill plan

By Patrick C. Miller | December 05, 2017

Citing the recent oil leak from the Keystone Pipeline in South Dakota, U.S. District Court Judge James Boasberg on Monday ordered Dakota Access LLC and the U.S. Army Corps of Engineers to work with two Dakota Sioux tribes on an oil spill response plan.

Boasberg also ordered the company—a subsidiary of Dallas-based Energy Transfer Partners—to conduct a third-party compliance audit in consultation with the Standing Rock and Cheyenne River Sioux tribes. In addition, Boasberg ordered Dakota Access to file bimonthly reports with the court on the status of the Dakota Access Pipeline (DAPL) beginning at the end of December.

The order is intended to protect the status quo of the site in south central North Dakota where DAPL crosses the Missouri River beneath Lake Oahe, the reservoir formed by the Oahe Dam near Pierre, South Dakota. The crossing on federal land is a half mile from the northern border of the Standing Rock Sioux Reservation. Both the Standing Rock and Cheyenne River Sioux reservations border Lake Oahe in North Dakota and South Dakota.

“Recent events have made clear, moreover, that there is a pressing need for such ongoing monitoring,” Boasberg wrote in his opinion. “Earlier this month, the Keystone Pipeline leaked 210,000 gallons of oil in Marshall County, South Dakota.”

Because the spill occurred near the boundaries of the Lake Traverse Reservation of the Sisseton Wahpeton Oyate Tribe, Boasberg said the incident highlighted the potential impact of a spill 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,” Boasberg wrote.

The tribes are suing the Corps of Engineers over the permit it issued earlier this year allowing DAPL to cross under the Missouri River. Boasberg said the court, the parties involved in the lawsuit and the public have an interest in ensuring that the status of Lake Oahe is maintained while the Corps works to address shortcomings with the permit.

The Corps filed a report with the court on Dec. 1 which said it is continuing to work with Energy Transfer Partners and the tribes to address the issues Boasberg identified to complete an environmental analysis. The agency expects the work to be completed by April 2, 2018. Boasberg ordered the final spill response plan to be submitted to the court by April 1 next year.

Boasberg ruled in June that oil could continue to flow through the $3.8 billion, 1,172-mile-long pipeline that carries crude from western North Dakota to a terminal in Patoka, Illinois. However, he also ruled the same month that the Corps of Engineers erred when it failed to consider the environmental justice and treaty rights impacts of a potential DAPL oil spill on the tribes.