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Dakota Access review 'gravely off track,' tribes say in calling for fresh start

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A decal attached to an iron fence post with the words "No Spiritual Surrender" is one of the few visible remnants of the Dakota Access Pipeline protest camp that flourished in 2016 and 2017 on federal land north of Cannon Ball in Morton County.

The head of the Standing Rock Sioux Tribe says the federal agency tasked with overseeing an ongoing environmental review of the Dakota Access Pipeline “is already gravely off track,” and he wants the process to start over.

Chairman Mike Faith and leaders of other tribes fighting the pipeline sent a letter Wednesday to a top U.S. Army Corps of Engineers official, taking issue with the contractor the agency has tapped to complete the review over its ties to the oil industry.

Tribal leaders say the Corps is working with Environmental Resources Management, a London-based company with offices in 40 countries including the United States.

One of the tribes’ concerns is that the company is a member of the American Petroleum Institute, a trade group that lobbies for the oil industry and has submitted court briefs supporting Dakota Access. The tribes also point to testimony an Environmental Resources Management worker offered to South Dakota regulators in 2015 after reviewing the proposed pipeline, concluding that it “is not likely to pose a threat of serious injury to the environment.”

“In essence, ERM is an agent of DAPL, rather than a neutral party,” reads the tribes’ letter, which they sent to Jaime Pinkham, acting assistant secretary of the Army for civil works.

The tribes say the Corps’ selection of the company “compromises” the integrity of the environmental review process.

Environmental Resources Management declined to comment on the letter. Opponents of the Keystone XL project raised similar concerns regarding a potential conflict of interest in the mid-2010s when the U.S. State Department used the company to complete the environmental review of that proposed oil pipeline.

A federal judge ordered the new, more thorough environmental study of Dakota Access last year and revoked a permit for the pipeline’s crossing under the Missouri River just upstream from the Standing Rock Reservation. Tribal members are concerned about a potential oil spill. The pipeline developer has long maintained that the line is safe.

The review process began one year ago and is expected to wrap up next September. It will be instrumental in the Corps’ decision on whether to reissue the permit.

The tribes are involved in the review, which is known as an Environmental Impact Statement. The Corps has not yet released a draft of the document to the public, but the tribes have seen it and say it “largely ignores the last five years of history and the thousands of pages of detailed technical and cultural material shared by the Tribes.”

“This is an advocacy document that appears to be prepared by the proponent for a single purpose: to justify issuance of a new easement of the pipeline at its current location,” the letter states. “In example after example, the document entirely ignores critical technical and cultural information that we have presented to the Corps.”

The tribes want the Corps to cut ties with Environmental Resources Management and run the review process out of the agency’s headquarters in Washington, D.C., not its regional district based in Omaha, Nebraska.

They call on the Biden administration to bring in the U.S. Interior Department “to assist the Corps in centering tribal impacts and concerns.” The U.S. Environmental Protection Agency has agreed to join the process, so “it makes sense to start over with full participation from all cooperating agencies,” the letter states.

The tribes also seek technical analysis they say the Corps is withholding from them and contend the draft of the review “is based on a secretive record of correspondence and one-sided technical data prepared by DAPL and unavailable to review and comment by us.”

“This is precisely the problem that has plagued the agency in the past and led to multiple court losses,” the letter states.

The Corps did not immediately respond to a Tribune request for comment on the letter.

Tribal leaders sent the letter two days after the pipeline developer filed an appeal over the environmental review process to the U.S. Supreme Court. The Supreme Court typically receives 7,000 requests to hear cases each year and selects 100 to 150 to review.

The pipeline underwent a less-extensive environmental review overseen by the Corps before the agency first issued a permit for it in 2017. Pipeline operator Energy Transfer maintains that review was sufficient.

Dakota Access has the capacity to carry as much as two-thirds of North Dakota’s daily oil output from the Bakken oil fields to Illinois.

The pipeline has been in operation since June 2017. Energy Transfer is in the process of nearly doubling its capacity so that it can transport up to 1.1 million barrels per day of oil, roughly the equivalent of North Dakota’s daily oil output.

Reach Amy R. Sisk at 701-250-8252 or amy.sisk@bismarcktribune.com.

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