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Third Time’s the Charm in Dakota Access Pipeline Challenge

Now that oil is flowing through the Dakota Access pipeline, a new court ruling points out several factors the government failed to consider before approving the project. 

WASHINGTON (CN) - Now that oil is flowing through the Dakota Access pipeline, a new court ruling points out several factors the government failed to consider before approving the project.  

How an oil spill would affect environmental justice is one of several issues that U.S. District Judge James Boasberg said the U.S. Army Corps of Engineers did not sufficiently address.

"Although the Corps substantially complied with NEPA in many areas, the court agrees that it did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial," the 91-page ruling states, using the abbreviation for the National Environmental Protection Act.

Whether the ruling will stop the flow of oil, which began on June 1, is still undetermined.

Boasberg said the question deserves further briefing.

Opponents of the pipeline with the Standing Rock and Cheyenne Sioux tribes have been fighting in court to block the pipeline’s construction for nearly a full year.

Before scoring partial summary judgment Wednesday, the tribes brought unsuccessful challenges that hinged on the threat to their sites of cultural and historical significance, and the possibility that the pipeline passage under Lake Oahe would desecrate sacred waters.

The tribes' latest legal challenge focused on allegations that the Army Corps had failed to properly assess the risk of oil spills under Lake Oahe or consider the effects of a spill on their treaty rights dealing with water, hunting and fishing, should a spill occur. 

A draft environmental assessment that the Army Corps produced in December 2015 concluded that a full environmental impact statement was not needed.

Pushing back against that conclusion, the tribes wanted the agency to prepare a full environmental impact statement before granting an easement permit for construction of the pipeline passage under Lake Oahe.

Before the November general election, they were poised to get that wish. After the Obama administration denied the easement permit on Dec. 4, the Army Corps said it would conduct the environmental impact statement.

Four days after the inauguration of President Donald Trump, however, the White House issued a memorandum instructing the Army secretary to expedite the final construction of the pipeline. After a brief review, the Army Corps determined that its initial environmental assessment was legally sound, reversed its intent to conduct an environmental impact statement and issued the easement permit.

Boasberg found Wednesday that the impact to the quality of the human environment was one area that the Army Corps failed to adequately address before granting the easement.

"As the agency did not demonstrate that it considered, as the CEQ regulations require, the degree to which the project’s effects are likely to be highly controversial, despite being presented with evidence of scientific flaws, the court cannot conclude that the Corps made a convincing case of no significant impact or took the requisite hard look," the ruling states, using the abbreviation for Council on Environmental Quality.

As for the impact of a spill on water resources, however, Boasberg said the Army Corps did consider this issue sufficiently, noting that system can detect leaks within an hour or less and shut down valves within three minutes after a rupture is detected.

Still, according to the ruling, the environmental assessment is lacking on how a spill would harm hunting or aquatic resources.

"As to aquatic resources, the EA offered only a cursory nod to the potential effects of an oil spill, stating simply that '[t]he primary issue related to impacts on the aquatic environment from operation of the Proposed Action would be related to a release from the pipeline,'" the ruling states, abbreviating environmental assessment.

"It never explained, though, what those effects would be. Instead, it simply reasoned that adherence to Dakota Access’s response plan 'would minimize potential impacts on aquatic wildlife,'" the ruling continued.

The Standing Rock Sioux tribe had specifically flagged this issue for the Army Corps after it published its draft assessment.

Boasberg likewise found the environmental assessment lacking in relation to how a spill would impact environmental-justice issues.

"The EA is silent, for instance, on the distinct cultural practices of the tribe and the social and economic factors that might amplify its experience of the environmental effects of an oil spill," the lengthy opinion states.

Boasberg said the Army Corps will have to remedy these violations upon remand.


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