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No Enviro Review Needed for Dakota Oil Pipeline

PIERRE, S.D. - South Dakota's Public Utilities Commission ruled that an environmental impact statement will not be a permit prerequisite for the proposed 1,143-mile Dakota Access Pipeline, which would transport crude oil across South Dakota from the Bakken Oil Fields in North Dakota to existing infrastructure in Illinois.

Two hours before public hearings on the project began in the state's capitol this week, the Rosebud and Yankton Sioux Tribes, along with Dakota Rural Action and the Indigenous Environmental Network, requested that the proceedings be stayed until an environmental impact statement could be generated.

"Because of the sensitive land areas over which this pipeline will traverse, we feel that it's imperative that a comprehensive environmental impact statement be performed prior to the Commission making a decision as to whether or not the pipeline should be authorized in South Dakota," attorney Matthew Rappold began on behalf of the groups. "An environmental review will provide the basis for a better, more informed decision for the commission in this case."

The pipeline would travel through areas in the eastern half of South Dakota that the federal government has recognized for their "wetlands, resources, animals, birds, and trees that are well worth protecting," Rappold said.

Of particular concern is the whooping crane, of which only 400 remain in the world, according to Rappold claimed the proposed pipeline "crosses over some of the most pristine habitat left in the world for the whooping crane."

"Now the testimony and the application that we've read says, 'Well, we haven't really seen too many of them,'" Rappold added, referring to the cranes. "Well, you know what? There's a good reason you haven't seen many of them, because honestly, there are not too many left to be seen."

Dakota Access attorney Brett Koenecke argued that the public hearing process was superior to an impact statement. "[It is] exceedingly open - anyone can be a party, offer discovery, call witnesses, and cross-examine witnesses. The extensive review of the PUC in the permitting process is exhaustive and allows everyone to have the same opportunity to examine and test the evidence and reach a conclusion. An EIS process is a much more closed and difficult process. What we have is a preferable process in almost every respect."

Rappold disagreed. "With an environmental impact statement, you have a neutral third party performing the investigation," he said. "We all have our own positions and will be biased in terms of what evidence we want to come in and what evidence we want to keep out. An environmental impact statement would address those issues."

Both Dakota Access's representatives and the commissioners expressed frustration that the motion to stay the proceedings had been "dropped" on them at the last minute.

Dakota Access first applied for a permit to build its pipeline in December 2014. From that date, the PUC has one year to decide whether it will issue a permit.

In South Dakota, an environmental impact statement for such projects is not mandatory, and is left to the PUC's discretion.

Commission staff estimated that federal environmental impact statements can take up to a year and a half to complete. Even if a state EIS could be completed more quickly, little time remains to conduct one before the permitting deadline expires in December of this year.

Commissioner Gary Hanson alone voted in favor of requiring an impact statement. "The environment is one of my very top concerns on this issue," he said, adding that his support for the pipeline would be contingent on its impact on the environment.

The other two commissioners voted against the EIS. "In my mind, staying this proceeding is not possible for us to do and maintain the statutory requirements we have to wrap this up by mid-December," said PUC chairman Chris Nelson.

However, the commissioners insisted that denying the stay would not keep them from looking into the environmental impacts of the pipeline.

Both the attorney for Dakota Access and the PUC commissioners declined requests for comment. Attorneys representing the opposing groups could not respond before deadline.

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