American Indian tribes who oppose the Dakota Access Pipeline have again asked a federal judge to stop the flow of oil while the battle over the line’s future plays out in several venues.
The Standing Rock Sioux and other tribes in the Dakotas succeeded on their first attempt, only to have an appeals court overturn U.S. District Judge James Boasberg's shutdown order earlier this year. Now, they're asking the judge to clarify his earlier ruling to satisfy the appellate judges and then order the line to cease operations.
The tribes argue that potential harm to their water supply outweighs any economic impacts of shutting down the line that’s been moving North Dakota oil to a shipping point in Illinois for more than three years.
“The Tribes are irreparably harmed by the ongoing operation of the pipeline, through the exposure to catastrophic risk, through the ongoing trauma of the government’s refusal to comply with the law, and through undermining the Tribes’ sovereign governmental role to protect their members and respond to potential disasters,” attorneys Jan Hasselman and Nicole Ducheneaux wrote.
The Friday filing in U.S. District Court in Washington, D.C., came as the federal agency that permitted the pipeline was wrapping up a two-day public meeting to help determine the scope of an environmental study U.S. District Judge James Boasberg ordered in March.
The U.S. Army Corps of Engineers launched the study about a month ago. It’s expected to take more than a year to complete, and will help determine whether the Corps reissues an easement for the pipeline’s Missouri River crossing in the Lake Oahe reservoir just north of the Standing Rock Reservation.
Tribes fear a spill into the river would pollute their water supply. Pipeline operator Energy Transfer and the Corps both maintain the pipeline is safe. Prolonged protests in 2016 and 2017 drew thousands of people to camps near the river crossing and resulted in hundreds of arrests.
“From the beginning of this litigation, the Tribes have sought to reinforce the centrality of Lake Oahe to their ceremonies, their economy, and their identity,” Hasselman and Ducheneaux wrote.
Boasberg, who is overseeing the four-year-old lawsuit filed by the tribes, ordered the extensive environmental study last spring because he felt previous, less-extensive environmental analysis by the Corps left lingering questions. Boasberg in July revoked the easement that allows for the river crossing and ordered the pipeline shut down until its environmental soundness was proven. A federal appeals court allowed oil to keep flowing, however, ruling that Boasberg hadn’t justified a shutdown. That same appeals court is now determining whether to uphold his decision regarding the study.
Tribes are asking Boasberg to issue an injunction while the legal fight plays out. A court-ordered injunction would prohibit Energy Transfer from operating the pipeline.
“With the pipeline now operating illegally, and the Corps poised to take no action, the case for suspending pipeline operations is even stronger,” the tribal attorneys wrote. “DAPL has operated for nearly four years, generating hundreds of millions of dollars for its owners, while exposing the Tribes to catastrophic risk and ongoing trauma that have never been subject to the scrutiny that (federal law) requires.”
U.S. Department of Justice spokeswoman Danielle Nichols declined comment Monday on the tribes’ filing. The Corps and Energy Transfer have until Nov. 20 to file a formal response in court.
The Corps also could shut down the pipeline -- and even order it removed. The line is now considered an "encroachment" on federal property because Boasberg revoked the easement. The agency is still determining how to address that, but Boasberg has said previously that he believes it is “unlikely” that the Corps will order the line shut down.
The deadline for comments on the scope of the environmental study is Oct. 26. The Standing Rock Sioux on Friday said it had submitted a formal request to the Corps to extend the deadline. The tribe cited the coronavirus pandemic as a reason, and said it also seeks “a true consultation here at Standing Rock.”
Before the pandemic-related downturn in the oil industry, the Dakota Access Pipeline was carrying as much as 570,000 barrels of oil out of the Bakken every day. Energy Transfer has started work on a project to nearly double the amount of oil flowing through the line.
Reach Blake Nicholson at 701-250-8266 or firstname.lastname@example.org.
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