Judge orders Dakota Access pipeline shut down pending review

Protesters against the Dakota Access oil pipeline stand on a burned-out truck near Cannon Ball, N.D., on Nov. 21.(James MacPherson / Associated Press)

FARGO, N.D. — A judge on Monday ordered the Dakota Access pipeline shut down for additional environmental review more than three years after it began pumping oil — handing a victory to the Standing Rock Sioux Tribe and delivering a blow to U.S. President Donald Trump’s efforts to weaken public health and environmental protections it views as obstacles to businesses.

In a 24-page order, U.S. District Judge James Boasberg in Washington, D.C., wrote that he was “mindful of the disruption” that shutting down the pipeline would cause, but that it must be done within 30 days. Pipeline owner Energy Transfer Partners plans to ask a court to halt the order and will seek an expedited appeal, spokeswoman Vicki Granado said.

The order comes after Boesberg said in April that a more extensive review was necessary than what the U.S. Army Corps of Engineers already conducted and that he would consider whether the pipeline should be shuttered during the new assessment.

“The Court does not reach its decision with blithe disregard for the lives it will affect,” Boasberg wrote Monday.

“Yet, given the seriousness of the Corps’ NEPA (National Environmental Policy Act) error, the impossibility of a simple fix, the fact that Dakota Access did assume much of its economic risk knowingly, and the potential harm each day the pipeline operates, the Court is forced to conclude that the flow of oil must cease,” he added.

The findings may challenge the legal footing for the Trump administration’s most momentous environmental rollbacks. Trump surrounded himself with industry leaders and workers in hard hats this January when he announced plans to overhaul the rules for enforcing NEPA.

The Dakota Access pipeline was the subject of months of protests in 2016 and 2017, sometimes violent, during its construction near the Standing Rock Sioux Reservation that straddles the North Dakota-South Dakota border. The tribe pressed litigation against the pipeline even after it began carrying oil from North Dakota across South Dakota and Iowa and to a shipping point in Illinois in June 2017.

The $3.8 billion, 1,172-mile (1,886 kilometre) pipeline crosses beneath the Missouri River, just north of the reservation. The tribe draws its water from the river and fears pollution.

“This pipeline should have never been built here. We told them that from the beginning,” Standing Rock Sioux Chairman Mike Faith said in a statement.

Texas-based Energy Transfer Partners contends proper procedures were followed in granting the original easement for the pipeline, Granado said.

“The economic implications of the Judge’s order are too big to ignore and we will do all we can to ensure its continued operation,” she said. “Billions of dollars in tax and royalty revenue will be lost by state, local and tribal governments in North Dakota, South Dakota, Iowa and Illinois. Farmers will suffer as crude transportation will move to rail, displacing corn, wheat and soy crops that would normally be moved to market. Ironically, the counties along these rail lines will face increased environmental risks due to the increased amount of crude oil travelling by rail.”

Ron Ness, president of the North Dakota Petroleum Council, decried what he called a “shocking” ruling and noted that the pipeline is moving 570,000 barrels of Bakken oil a day.

Before the coronavirus pandemic devastated the U.S. oil industry, daily oil production in North Dakota — the nation’s No. 2 oil producer behind Texas — was at a near-record 1.45 million barrels daily. The state’s output slipped to below 1 million barrels daily in May amid low energy prices and sparse demand.

Permits for the project were originally rejected by the Obama administration, and the Army Corps of Engineers prepared to conduct a full environmental review. In February 2017, after Trump took office, the Corps scrapped the review and granted permits, concluding that running the pipeline under the Missouri River posed no significant environmental issues.

The Corps said that opinion was validated after an additional year of review, as ordered by Boasberg, an Obama appointee, in 2017.

Boasberg ruled then that the Corps “largely complied” with environmental law when permitting the pipeline but ordered more review because he said the agency did not adequately consider how an oil spill under the Missouri River might affect the Standing Rock Sioux’s fishing and hunting rights, or whether it might disproportionately affect the tribal community.

The Associated Press, Published Monday, July 6, 2020.

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Standing Rock Sioux tribe challenges Corps findings on Dakota Access pipeline

A Standing Rock Sioux flag flies over a protest encampment near Cannon Ball, North Dakota, where members of the Standing Rock nations and their supporters gathered to voice their opposition to the Dakota Access Pipeline. (Photo by Robyn Beck/Getty Images)

The Standing Rock Sioux tribe, which is leading a four-tribe lawsuit against the four-state pipeline built by Texas-based Energy Transfer Partners, in court documents filed Thursday asked a federal judge to reject the findings.

“The corps has conducted a sham process to arrive at a sham conclusion, for the second time,” tribal Chairman Mike Faith said in a statement.

The pipeline has the capacity to move half of the oil produced daily in North Dakota, the nation’s second-leading producer behind Texas. It passes just north of the Standing Rock Reservation, beneath a Missouri River reservoir that is the tribe’s water source.

The pipeline has been moving North Dakota oil through South Dakota and Iowa to a shipping point in Illinois since June 2017. That same month, U.S. District Judge James Boasberg ruled that the Corps largely complied with environmental law when permitting the pipeline but needed to do more study of its impact to tribal rights. The Corps filed its work with the court in late August.

Standing Rock’s challenge says the Corps “failed to grapple with extensive technical input provided by the tribe and others undermining its conclusions.” The major example the tribe offered is information it says shows the Corps has underestimated the risk and impact of an oil spill.

The tribe continues to maintain that the only lawful way to resolve the matter would be through a full environmental study that includes consideration of route alternatives.

The Corps had planned to do a more extensive environmental study before President Donald Trump took office in January 2017 and pushed through completion of the stalled project. The agency said in court documents in August that the additional study concluded a more thorough review is unwarranted. The tribe asks Boasberg to reject that conclusion.

By Associated Press

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Oil Pipeline Opponent Uses ‘Necessity Defense’ — What Is It?

Sioux Tribal member and Standing Rock activist Chase Iron Eyes speaks to a packed crowd in the Lawrence A. Bertolini Center at Santa Rosa Junior College April 3. – James Wyatt

An American Indian activist and former U.S. congressional candidate in North Dakota accused of inciting a riot during protests against the Dakota Access oil pipeline says he’ll seek to present a “necessity defense” — justifying a crime by arguing it prevented a greater harm.

Chase Iron Eyes has pleaded not guilty to inciting a riot and criminal trespassing. He could face more than five years in prison if convicted at trial in February. The pipeline has since begun carrying oil from North Dakota through South Dakota and Iowa to Illinois.

Pipeline protesters who try the necessity defense typically argue that the greater harm is climate change. Iron Eyes, a member of the Standing Rock Sioux tribe, says he hopes to show that civil disobedience was his only option to resist a pipeline’s incursion on his ancestral lands. The prosecutor in the case didn’t respond to a request for comment. A judge will hear arguments Nov. 3.

WHAT IS THE NECESSITY DEFENSE?

People who use it are trying to show the harm they caused is justified because a greater harm was avoided as a result.

It dates to the late 1800s in England, when two sailors were charged with murder after they stayed alive by killing and eating a third sailor marooned with them in a lifeboat.

IS IT RECOGNIZED BY THE COURTS?

The U.S. Supreme Court has said it’s an “open question” whether federal courts have the authority to recognize a necessity defense not provided by law, according to North Dakota District Court Judge Laurie Fontaine.

Whether the defense is permitted by law in state courts varies, according to University of Mississippi law professor Michael Hoffheimer.

The main argument against the defense is that it gives people who don’t like a particular law the chance to break it and then argue it was excusable.

The main argument in its favor is that there might be special circumstances in which there is a justifiable reason for breaking a law.

HOW IS IT USED NOW?

It is used most frequently in criminal cases — such as drunk driving and marijuana use — in which people argue that what they did was necessary to prevent some greater harm.

In one such case, the Minnesota Supreme Court in 2014 ruled against a woman who challenged the revocation of her driver’s license after she drove while intoxicated to escape her abusive husband.

Defense attorneys also have tried the necessity defense when people illegally use marijuana, arguing that it was needed to treat a health problem. A 1976 District of Columbia court decision in favor of a person suffering from glaucoma was the first in the country to recognize the defense in a marijuana case, according to the National Organization for the Reform of Marijuana Laws.

The defense also has been used through the years by abortion clinic protesters. In a high-profile case in 2009, a judge ruled against its use in the trial of Scott Roeder, who confessed to killing an abortion-providing doctor in Kansas but argued it was necessary to save unborn children.

It was first attempted in a U.S. environmental case in 2009 when a climate change activist cited necessity in Utah. Alice Cherry, co-founder of the Climate Defense Project, said it has been used in similar cases in Washington state, New York, Montana, North Dakota and Minnesota. The Climate Defense Project even offers an educational guide on using the defense and says this area of the law is “developing rapidly.”

With pipeline protests, demonstrators often point to climate change and environmental damage as the greater harms. Oil pipelines carry fossil fuels, including oil, which release gases that trap heat and contribute to climate change, they argue.

Iron Eyes’ arguments are more complex. He cites an “imminent threat” to his tribe’s water supply because the Dakota Access pipeline goes beneath the Lake Oahe reservoir on the Missouri River, from which the tribe draws its drinking water. He also contends there was an effort by industry, private security and public law enforcement to conduct “an anti-terrorist campaign against Native Americans.”

WHAT MUST BE PROVEN?

Legal experts agree the necessity defense is a long shot.

To succeed, the defendant generally has to persuade the judge or jury that they had no legal alternative to breaking the law. They also must prove they were trying to prevent some imminent harm, and there must be a direct connection between their breaking the law and preventing the harm. Finally, they must prove that breaking the law is less harmful than what would have happened.

HAS IT SUCCEEDED IN ENVIRONMENTAL CASES?

Not often.

In a Minnesota case, Judge Robert Tiffany is allowing four pipeline protesters to use the defense, but he also said they must clear a high legal bar. Tiffany said the defense applies “only in emergency situations where the peril is instant, overwhelming, and leaves no alternative but the conduct in question.” That case is still pending.

A judge in Spokane, Washington, is allowing a 77-year-old Lutheran pastor to use a necessity defense in his upcoming trial stemming from a climate change protest last year. The Rev. George Taylor stood on railroad tracks to protest coal and oil trains that pass through Spokane and their contribution to climate change.

Judges in recent pipeline protest trials in North Dakota, Montana and Washington state have rejected the defense. The Montana judge said he didn’t want to put U.S. energy policy on trial, and the North Dakota judge said a reasonable person couldn’t conclude a direct cause and effect between the defendant’s pipeline protest and climate change.

The Montana case is pending. In the Washington and North Dakota cases, the protesters on trial were allowed to tell jurors of their “state of mind” during the offense, but in both cases were still convicted. In the Washington case, the protester received probation and said he was “heartened, knowing that we are bringing these arguments into the jury system.”

Associated Press

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Reader Submission  

U.N. Investigator: Native American Rights Violated by DAPL Law Enforcement

Authorities used unnecessary force

KVRR By Erin Wencl, March 3, 2017

An official with the United Nations says the rights of Native Americans in North Dakota are not being respected by the state.

Victoria Tauli-Corpuz visited Dakota Access protest camps in Morton County.

Tauli-Corpuz is the U.N.’s special investigator on the rights of indigenous peoples.

She says authorities used unnecessary force and that the reports of the cleanup in the county have been blown out of proportion.

She also says the Standing Rock Sioux tribe was not consulted on major issues.

Gov. Burgum says the state is focused on maintaining peace, protecting the environment and restoring a good relationship with the tribe.

Tauli-Corpuz’s report will be given in September to the U.N. Human Rights Council.

[SOURCE]

U.S. Army Corps To Grant Final Permit for the Dakota Access Pipeline: Court Filing

A North Dakota National Guard vehicle idles on the outskirts of the Dakota Access oil pipeline protest camp near Cannon Ball, North Dakota, U.S., January 29, 2017. REUTERS/Terray Sylvester

Reuters | Feb 7, 2017 

The U.S. Army Corps of Engineers will grant the final easement needed to finish the controversial Dakota Access Pipeline, according to a court filing Tuesday.

The line had been delayed for several months after protests from Native American tribes and climate activists. The $3.8 billion line, which is being built by Energy Transfer Partners (ETP.N), needed a final permit to tunnel under Lake Oahe, a reservoir that is part of the Missouri River.

The Standing Rock Sioux tribe, whose reservation is adjacent to the line’s route, has said it will fight the decision. The Army Corps had previously stated that it would undertake further environmental review of the project. The tribe was not immediately available for comment.

The 1,170-mile (1,885 km) line will bring crude oil from North Dakota’s Bakken shale region to Patoka, Illinois, and from there connect to the Gulf of Mexico, where many U.S. refineries are located.

The tribe had fought the line for months, fearing contamination of their drinking water and damage to sacred sites on their land. This one-mile stretch under the river was the last uncompleted section of the line; the pipeline is expected to be operational late in the second quarter.

“The discord we have seen regarding the Dakota Access Pipeline doesn’t serve the tribe, the company, the Corps or any of the other stakeholders involved. Now, we all need to work together to ensure people and communities rebuild trust and peacefully resolve their differences,” said John Hoeven, Republican senator from North Dakota, in a statement.

Numerous activists who have been protesting in North Dakota have vowed to stay, although the primary protest camp is located on a flood plain on Army Corps land and is in the process of being cleared.

Their protests, along with those of climate activists, resulted in the Obama administration’s decision to delay a final permit that would allow construction under the Missouri River. It also ordered an environmental assessment, but that will not be conducted following Tuesday’s decision.

A memo dated Tuesday from Douglas Lamont, a senior official with the Army’s Civil Works department, said that he believes there is “no cause for completing any additional environmental analysis,” in part because of previous assessments by the Corps in 2016.

The Army informed the chairs and ranking members of the House Natural Resources and Senate Energy & Natural Resources committees of their intent in a letter on Tuesday.

President Donald Trump, days after being sworn in, issued an executive order directing the U.S. Army Corps to smooth the path to finishing the line. Tuesday’s filing was made in U.S. District Court in Washington D.C.

Shares of Energy Transfer Partners were down before the news. The stock finished up 20 cents to $39.60 a share.

(Reporting By Valerie Volcovici; editing by Diane Craft and Cynthia Osterman)

http://www.reuters.com/article/us-north-dakota-pipeline-idUSKBN15M2DU