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Tribes decry court decision to let DAPL oil keep flowing





Construction on the Revolution System in Pennsylvania, one of Energy Transfer Partners’ many contested petroleum pipelines, is expected to lead to delivery of fracked gas from Marcellus Shale by the end of 2017.

Construction on the Revolution System in Pennsylvania, one of Energy Transfer Partners’ many contested petroleum pipelines, is expected to lead to delivery of fracked gas from Marcellus Shale by the end of 2017.

WASHINGTON — A federal judge ruled against tribal arguments on Oct. 11, when he declared that the contested Dakota Access Pipeline (DAPL) can continue pumping oil across the Missouri River, while the U.S. Army Corps of Engineers finishes an environmental review he ordered on the agency permit.

The judge denied the Standing Rock and Cheyenne River Sioux tribes’ call for a halt to the oil flow during pursuit of their court complaint against the Corps. They charge the agency with failing to conduct adequate tribal consultation on protecting sacred sites and water rights when it issued an easement to build he pipeline river crossing.

A consortium led by the Texas based Fortune 500 company Energy Transfer Partners started pumping the oil through the line in June.

In the latest ruling on the case in the U.S. District Court for the District of Columbia, Judge James Boasberg found that shutting down the pipeline would not cause major economic disruption, as Energy Transfer Partners claimed. However, the judge didn’t order a halt, because he found a possibility that the Corps would be able to justify its initial decision to forego a full environmental review.

Tribal elected leaders responded swiftly. “This pipeline represents a threat to the livelihoods and health of our nation every day it is operational,” said Standing Rock Sioux Tribal Chair Mike Faith, who was inaugurated the same day as the decision.

“It only makes sense to shut down the pipeline while the Army Corps addresses the risks that this court found it did not adequately study,” Faith said.

“From the very beginning of our lawsuit, what we have wanted is for the threat this pipeline poses to the people of Standing Rock Indian Reservation to be acknowledged. Today, our concerns have not been heard and the threat persists,” he concluded.

The Cheyenne River Sioux Tribe reacted similarly. “In allowing the Dakota Access Pipeline to continue operations, it shows a complete disregard of the federal government’s responsibility to safeguard its treaty responsibilities, our life-giving resources and the American people,” the tribal government said in a written statement.

Boasborg had ruled in June that the Corps failed to adequately consider the environmental consequences of the nearly 1,200-mile oil pipeline across 1851 Ft. Laramie Treaty territory in North and South Dakota.

The judge found parts of an initial study addressing “impacts of a spill on hunting rights, fishing rights and environmental justice” deficient and ordered a new report to address those risks.

“This decision now renders the previous judgements by the federal court to a mere government formality,” the Cheyenne River Sioux Tribe said.

The tribe cited the U.S. Constitution, Art. 6, Paragraph 2, which states, “This Constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.”

Cheyenne River Sioux Tribal Chair Harold Frazier remarked, “I am deeply saddened by the yet another example of the United States disregarding the rule of law after inflicting violence on my people to violate treaty responsibilities.

“This decision is an example that the United States only applies their own laws when it is convenient to wealthy people operating under the guise of a business,” he added. “If we cannot stop the United States from breaking their own laws, how can we expect the justice from their laws?”

The court expressed willingness to consider other restrictions or measures to protect the tribes while pipeline operations continue, and it invited further briefing, according to Jan Hasselman, Earthjustice attorney representing the Standing Rock Sioux Tribe.

Boasborg set a status conference Oct. 18, to discuss next steps in the case.

Hasselman called the decision “a disappointing continuation of a historic pattern: Other people get all the profits, and the tribes get all the risk and harm,” he said.

“The court already found that the Corps violated the law when it issued the permits without thoroughly considering the impact on the people of Standing Rock. The company should not be allowed to continue operating while the Corps studies that threat,” he said.

The pipeline experienced leaks on three separate occasions after U.S. President Donald Trump directed the Corps to issue the permit to complete the project in early 2017.

The private infrastructure carries crude oil from the Bakken fracking fields, centered at the Mandan Hidatsa & Arikara Nation in North Dakota, to a refinery in Illinois and to connecting pipelines that transport it to coastal export facilities.

The Corps and Energy Transfer Partners kept mum about the court ruling. The Corps estimates that its new environmental reviews will be completed by April 2018.

Energy Transfer Partners has a number of other contested pipeline construction projects across the United States, including the Rover Pipeline in Michigan, the Revolution System in Pennsylvania, the Mariner East and Mariner West in the Northeast, the Bayou Bridge Pipeline in Louisiana, and the Trans-Pecos Pipeline and Mariner South in Texas.

(Contact Talli Nauman at talli. nauman@gmail.com)


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