Energy & Environment

Judge rejects tribe’s request to block ND pipeline construction

Greg Nash
A federal judge on Friday ruled that construction of the Dakota Access Pipeline can move forward despite a tribe’s objections to the project.
In a 58-page ruling, District Judge James Boasberg said federal regulators and pipeline developers covered all their bases during an assessment of the $3.8 billion pipeline’s impact on cultural sites in North Dakota.
Even so, the Obama administration said it would halt construction on a portion of the pipeline project and review its environmental permitting before allowing it to go forward.
{mosads}The Army Corps of Engineers likely complied with the National Historic Preservation Act, Boasberg wrote, “and that the Tribe has not shown it will suffer injury that would be prevented by any injunction the Court could issue. The motion will thus be denied.”
The Standing Rock Sioux Tribe has accused the Corps of failing to properly consider whether the 1,170-mile pipeline poses a threat to important areas in North Dakota. It sued the Corps in July, asking for an injunction against further pipeline construction while lawsuits over it move forward.
The pipeline isn’t set to cross the Standing Rock reservation but would cross in nearby land the tribe considers sacred.
They say developers have already ruined important sites during the clearing process along the pipeline’s route, including a stone formation that was bulldozed last weekend.
They also worry about the impact a pipeline leak might have on the Missouri River, the tribe’s water source. The project, which could eventually carry 570,000 barrels of oil from the Bakken shale formation a day to a port in Illinois, is slated to run under Lake Oahe, a dammed portion of the river near the tribe’s land. On Tuesday, Boasberg ordered clearing work to stop on a stretch of the pipeline until he issued Friday’s ruling.
But the Corps and Dakota Access argued that they took the steps necessary for approving the project under federal law. Regulators said the tribe even declined their invitation to discuss the project and raise objections to it.
The tribe is certain to appeal the ruling; Boasberg has already scheduled a preliminary hearing on the matter for next week.
Boasberg concluded he couldn’t issue an injunction against the pipeline because he doubts the Sioux can win their underlying lawsuit against the project. 
He noted — as federal lawyers did — that the Standing Rock Sioux did not respond to Corps requests for comment early on in its assessment of the route, or for meetings with federal officials.
“The Corps has documented dozens of attempts it made to consult with the Standing Rock Sioux from the fall of 2014 through the spring of 2016 on the permitted DAPL activities,” Boasberg wrote. 
“These included at least three site visits to the Lake Oahe crossing to assess any potential effects on historic properties.”
The judge said early pipeline surveys found 149 potential sites of cultural relevance, and noted that pipeline planners rerouted it 140 times “to avoid potential cultural resources.” 
He credited Dakota Access with crossing the Lake Oahe close to an existing pipeline that runs under the lake, saying that strategy mitigates the impact on the land there. 
He also ruled an injunction would not effectively prevent harm to Standing Rock cultural sites, nothing that half the project is already complete. He said the injunction the tribe requested would not stop construction of the pipeline, since most of it runs through private land not subject to federal law or permitting.  
Lake Oahe, he wrote, is “of undeniable importance to the Tribe.” But, “the Tribe not met its burden to show that DAPL-related work is likely to cause damage.”
“Aware of the indignities visited upon the Tribe over the last centuries, the Court scrutinizes the permitting process here with particular care,” Boasberg concluded. 
“Having done so, the Court must nonetheless conclude that the Tribe has not demonstrated that an injunction is warranted here.”
Opposition to the pipeline has grown from tribal protests on the North Dakota prairie to a national fight over fossil fuel development and pipeline projects generally. Earthjustice represented the tribe in its lawsuit against the Army Corps, and other environmentalists have looked to pressure President Obama into rescinding construction permits for the project.
The pipeline’s developer, Texas-based Energy Transfer Partners, has hoped to get the pipeline up and running by Jan. 1, 2017. It says it has completed 90 percent of the clearing process in North Dakota and that the project itself is about 50 percent complete.
—Updated at 3:55 p.m. 
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