Judge Says Dakota Access Pipeline Firms Can Shield Route Information

WASHINGTON (CN) – A federal judge ruled Friday that Dakota Access LLC can shield sensitive information about infrastructure routes of its controversial oil pipeline to protect it from would be terrorists and nefarious actors.

U.S. District Judge James Boasberg found that an exemption typically used for withholdings in Freedom of Information Act cases also applies to information about potential oil spills that the developers of the Dakota Access pipeline want to keep secret in their ongoing battle with the Standing Rock and Cheyenne Sioux Tribes over the pipeline’s route.

“[t]he asserted interest in limiting intentionally inflicted harm outweighs the Tribes’ generalized interests in public disclosure and scrutiny, particularly given that all parties in the case will have access to the full, unredacted administrative record for purposes of the summary-judgment litigation,” the 13-page ruling states.

Boasberg ruled that Dakota Access LLC could redact the names of “certain crossings, the names of pipeline segments when paired with timelines for detecting and shutting down spills, graphs of spill-risk scores at various points along the pipeline, maps of spill scenarios and predictions as to the volume of oil that would be released, the names of systems used to monitor the pipeline for leaks, and methods of communication with those monitoring systems.”

Boasberg granted a protective order for five of the 11 documents the pipeline backers asked to redact.

Finding its first brief lacking in justification for the proposed redactions, Boasberg was persuaded by a review of the documents performed by an official at the Pipeline Safety and Hazardous Materials Safety Administration.

At the request of the U.S. Army Corps of Engineers, the primary defendant in the case, David Lehman suggested that FOIA Exemption 7(F), which allows an agency to withhold information that serves a law enforcement purpose if it might pose danger to the life or safety of an individual, could apply to 50 redactions on spill-model reports that Dakota Access wants to shield from public disclosure.

“Lehman’s reliance on the Freedom of Information Act’s Exemption 7(F) to recommend against full disclosure of the spill-model reports is permissible even though the question whether to release them did not arise in a FOIA action,” the ruling states.

Boasberg relied on D.C. Circuit Court of Appeals precedent stemming from Pub. Emps For Envtl Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mexico  to reach his conclusion.

In that case the D.C. Circuit held that FOIA exemption 7(F) justified withholding maps for areas on the U.S.-Mexico border that could be inundated if certain dams broke, along with peak flow times and estimates of how long it would take floodwaters to reach downstream locations.

“In so doing, it credited the government’s explanation that disclosure of the inundation maps ‘would give anyone seeking to cause harm the ability to deduce the zones and populations most affected by dam failure,’ thus enabling ‘[t]errorists or criminals’ to ‘use that information to determine whether attacking a dam would be worthwhile, which dam would provide the most attractive target, and what the likely effect of a dam break would be,'” the ruling states.

Boasberg found a parallel between that case and the Dakota Access spill maps, but was not persuaded to allow redactions of six other documents that outline how authorities would respond to intentional damage inflicted on the pipeline.

Dakota Access LLC sought to shield “the phone numbers of local government agencies, including the sheriff, fire department, and levee districts; the names of waterways potentially affected by spills; and maps and descriptions of potential deflection/containment booms.”

“Dakota Access offers very little in the way of specific facts to support its argument that terrorists or other individuals with malicious intent might use this information to craft a plan to harm the pipeline in a way that causes the greatest damage,” the ruling concludes.

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