When considering who would be affected by the Dakota Access Pipeline, the federal government focused on two predominantly white counties rather than the Standing Rock Sioux Reservation downstream.
That analysis is now key to a newly ordered review of the pipeline, focusing on whether environmental justice was adequately considered for the low-income, minority community less than a mile south of the Lake Oahe crossing.
U.S. District Judge James Boasberg wrote in a Wednesday opinion the U.S. Army Corps of Engineers did not adequately consider how a spill would affect Native American tribes living just south of the pipeline.
The corps focused its environmental justice analysis on a half-mile buffer where the pipeline crosses a dammed section of the Missouri River. The review looked at two census tracts in Morton and Emmons counties, areas that are primarily white and relatively more affluent than other areas nearby.
If the analysis had extended another 0.05 miles — less than the length of a football field — it would have included Standing Rock Sioux Reservation in Sioux County, the third poorest county in the country.
The corps' rationale was that a half-mile is standard for gas pipelines and transportation projects.
But Boasberg questioned whether the buffer was large enough to account for spill effects and construction impacts. He suggested the tribe might suffer disproportionate harm in the case of a spill because of the tribe’s poverty, "distinct cultural practices" and some members' reliance on hunting and fishing.
"The court is hard pressed to conclude that the corps’ selection of a 0.5-mile buffer was reasonable," Boasberg wrote.
The Environmental Protection Agency also criticized the half-mile buffer, advising the corps it should analyze areas impacted by a project, not only the area where construction occurs, Boasberg notes in his opinion.
Environmental justice is the concept that everyone, regardless of income or race, should be treated fairly when potentially harmful projects are planned near them.
In 1994, President Bill Clinton signed an order that made it a necessary consideration in all federal environmental reviews. Agencies are required to ask whether a project will have an especially negative impact on poorer, minority communities.
The issue often arises when deciding where to put projects, such as hazardous waste facilities, refineries, landfills and highways. In an effort to avoid controversy, companies sometimes try citing projects in impoverished areas, according to Deborah Sivas, a professor of environmental law at Stanford Law School.
"There has been a concern in the last couple of decades that projects that might be controversial stay away from affluent areas where people have the time and resources to organize," she said.
Sivas said people in lower income communities sometimes can't hire lawyers or do not have time to show up at the meetings where public input is heard.
"If the agencies haven't been the watchdog for the community, no one will," she said.
James Grijalva, a law professor at the University of North Dakota, said the lawsuit and protest may have been avoided if the company and the corps did a full environmental review.
“The court’s decision makes clear that the laws passed by Congress to protect human health and the environment must be respected, regardless of the monetary desires of the oil industry and government officials to fast-track energy projects,” said Grijalva, also director of the Tribal Environmental Law Project.
Robert Bullard, a professor of environmental policy at Texas Southern University, said he would have given the environmental justice assessment a grade of "F."
"What the analysis did was gerrymandered and rendered the reservation of the closest population — native tribes — invisible," he said.
The additional analysis requested by the judge focuses on the potential impacts a spill would have on the tribe.
But pipeline proponents, including Craig Stevens, a spokesman for a coalition that supports infrastructure development, say the risk of a spill that would impact the Standing Rock Reservation is minimal.
“This is probably the safest pipeline ever constructed, and it's 90 feet below the waterbed,” said Stevens, who represents GAIN, or Grow America’s Infrastructure Now. “The risk of a spill in getting into that water is near nil.”
Stevens also pointed to the more than 1,200 pages in the environmental assessment supported by thousands of pages of additional information.
“It goes to show the amount of time and consideration both the company and the corps made,” said Stevens, adding the company and the corps met many times with tribes.
Boasberg wrote that the corps “largely complied” with the National Environmental Policy Act outside of environmental justice, tribal hunting and fishing rights and controversy among experts over the pipeline’s safety.
Energy Transfer Partners said in a statement that it believes the “record will enable the corps to substantiate and reaffirm its prior determinations.”
“It is important to note that while Judge Boasberg asked the corps to provide greater substantiation for its conclusions, the court did not find the prior determinations to be erroneous,” the company said.
Many critics question why the company didn’t locate the pipeline north of Bismarck, a route earlier considered by Dakota Access.
Boasberg wrote in his opinion the corps adequately considered a route 10 miles north of Bismarck, citing information that the Lake Oahe crossing was co-located with other utilities and affected fewer acres of land and wetlands.
The Bismarck route also would have been located nearly four miles closer to a drinking water intake than the Oahe crossing, Boasberg wrote.
Boasberg's order requires the corps to redo parts of its environmental analysis, including its environmental justice study.
Sivas said the corps will probably try to redo the parts of the environmental assessment the judge found lacking and incorporate its findings as a supplement. If the agency finds the environmental justice issue is significant, however, it is required by policy to conduct a more thorough environmental impact statement, she said.
The U.S. Army Corps of Engineers said it is reviewing the court’s decision and is working with the Department of Justice on next steps.
A Department of Justice spokeswoman said the agency “intends to continue vigorously defending the government’s actions in this case.”
The judge has asked attorneys to submit arguments on what should happen during the review, including whether the pipeline should continue operating. The $3.8 billion pipeline from the Bakken to Illinois went into commercial service on June 1. A hearing is scheduled for Wednesday in Washington, D.C.
Jan Hasselman, an attorney for Earthjustice who represents the Standing Rock Sioux Tribe, said if the corps tries to “paper over” the flaws in the environmental assessment without doing a more thorough review, the matter may be headed toward another round of litigation.
“I believe the environmental justice analysis in the corps’ documents was probably the most appalling part of its decision,” Hasselman said.
The tribe’s position that when a permit is issued without full compliance of the law, it should be vacated, according to Hasselman.
“This pipeline should not be operating until there’s a full and fair analysis of those risks and consequences,” Hasselman said.
An earlier version of this article gave an incorrect first name for U.S. District Judge James Boasberg.