Standing Rock: In the Courts of the Conqueror (and my comments on the EIS)

courtsThe title of this blog post comes from Walter Echo-Hawk’s book, In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided.  Echo-Hawk (Pawnee) is an attorney and his book is a tour de force of US law vis-a-vis Native Americans, from the past to the present.

Perhaps a new chapter will be written on Standing Rock Sioux Tribe (SRST) v US Army Corp of Engineers (2017).  Here’s the current status:

  • The Army Corp, in obedience with Trump’s memo, have withdrawn the Notice of Intent regarding the Environmental Impact Statement (EIS).  At the same time, they have granted all easements and permission for Energy Transfer Partners (ETP) to complete the Dakota Access Pipeline (DAPL).
  • ETP has starting drilling under Lake Oahe.  In fact, they say it is going faster than expected and they may be done in early March.
  • SRST filed in a Washington, D.C. court for an emergency stop and a hearing.
  • The judge denied the emergency stop, saying nothing was urgent as long as there was no oil in the pipeline, and has set the hearing for February 27.
  • As of now, the official permitting document for the Lake Oahe crossing is the Environmental Assessment (EA).  This is a deeply flawed document (pathetic, actually) put together after a deeply-flawed process.  I know.  I have done many EA’s as part of my work to implement ecologically-beneficial restoration projects.  And, let me tell you, we have to jump thru far higher hoops (to do good things) than ETP and the Army Corp have had to in order to lay a large oil pipeline across four states. If my legal counsel reviewed an EA like that, they’d send us back to the drawing board and tell me we were legally way out of compliance.

I could go into great detail on the deeply-flawed EA and deeply-flawed process, but most of that is covered in these two posts:

Standing Rock: Understanding the EIS Process

Dakota Access’s Trail of Broken Laws

 

Below are my comments on the EIS.  Although the process is closed, it was supposed to be open until Feb 20.  And even though the website it down, they can still be emailed to:

Mr. Gib Owen (gib.a.owen.civ@mail.mil ), Office of the Assistant Secretary of the Army for Civil Works, 108 Army Pentagon, Washington, DC 20310-0108

I focused my comments on a couple topics I thought might not be mentioned by others:  new information on pipeline risk and economic factors.  Here they are:

To:  Mr. Gib Owen (gib.a.owen.civ@mail.mil )

Office of the Assistant Secretary of the Army for Civil Works

108 Army Pentagon

Washington, DC 20310-0108

From:  Dr. Stephen C. Hampton

Date: February 15, 2017

Subject:  NOI Comments, Dakota Access Pipeline Crossing

Despite the withdrawal of the NOI on the EIS by the US Army Corp of Engineers (USACE), I submit these comments in the hope that a judge will require them to be considered.

The NOI describes several areas of inquiry for the EIS.  These include (1) Alternative locations for the pipeline crossing the Missouri River; (2) Potential risks and impacts of an oil spill, and potential impacts to Lake Oahe, the Standing Rock Sioux Tribe’s water intakes, and the Tribe’s water, treaty fishing, and hunting rights; and (3) Information on the extent and location of the Tribe’s treaty rights in Lake Oahe.  The NOI also states the “range of issues, alternatives, and potential impacts may be expanded based on comments received in response to this notice.”

The list above seems to address the perceived gross injustices associated with the EA—that 1) route alternatives were considered and a preferred alternative chosen before the affected tribes were consulted; and 2) that no formal tribal consultation between the USACE and affected tribes occurred, and certainly none prior to the consideration of route alternatives.

I have one comment on the current list of issues, and further make one recommendation to expand the list of issues.

CURRENT ISSUES:  RISK ANALYSIS

An analysis of the risk of oil spill from a pipeline should include an examination of recent pipeline spills, some since the EA was conducted.  At a minimum, these should include:

  1. January 25, 2017, Worth County, Iowa, pipeline break, 138,000 gallons spilled
  2. December 5, 2016, near Belfield, North Dakota, pipeline break into Ash Coulee Creek (tributary of Missouri River), 200,000 gallons spilled
  3. May 19, 2015, Plains All-American pipeline break near Refugio State Beach, California where external corrosion was a factor.
  4. January 18, 2015, near Glendive, Montana, pipeline break into Yellowstone River (largest tributary of Missouri River), 50,000 gallons spilled
  5. July 1, 2011, near Laurel, Montana, pipeline break into Yellowstone River, 63,000 gallons spilled.

The pipeline risk analysis should also consider the report authored by Richard B. Kuprewicz, which is available here:

http://earthjustice.org/sites/default/files/files/10-28-16-Final-Accufacts-Report.pdf

and this paper:

Brody, Thomas M., P. Di Blanca, J. Krysa. 2012. Analysis of inland crude oil spill threats, vulnerabilities, and emergency response in the Midwest United States.  Risk Analysis, Vol. 32, No. 10: 1741-1749.

ADDITIONAL ISSUE:  ECONOMIC IMPACTS

The EA seems to make the assumption that no other pipelines exist to carry Bakken production out of North Dakota and that, should the Dakota Access Pipeline (DAPL) not be constructed, all 570,000 bpd of its capacity would be transported by rail, at risk to minority and low-income communities along rail corridors, and at the cost of displacing the transport of agricultural products by rail.

Specifically, the EA states: “There is the potential for daily production in excess of 570,000 barrels per day in the Bakken and Three Forks production area, but there is no existing pipeline infrastructure sufficient to transport that volume of crude oil from North Dakota to the refineries.”

This is false on all counts.  Bakken production is about 900,000 barrels per day (bdp); it was over 1 million bpd when the EA was written. There are six pre-existing pipelines transporting oil out of North Dakota, with a total capacity of 767,000 bpd.  Add to that two local refineries with a total capacity of 88,000 bpd, and there is a total “take-away capacity” to handle 855,000 bpd of Bakken production, which is just shy of current production, which is declining.  See figure below.

bakken-2jpg

This data suggests that 1) the economic premise behind many of the rationale in the EA are not true now, and some never were; 2) DAPL is essentially not needed, as nearly all existing production fits within current pre-existing pipelines; 3) DAPL may simply steal market share from these pre-existing pipelines, causing adverse economic impacts in some areas and possibly consolidate market power in ways that violate anti-trust laws. Given US government projections that the price of oil will remain low thru 2025, this economic situation is likely to persist.  These economic impacts should be further evaluated in an EIS.

 

 

 

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2 Responses to Standing Rock: In the Courts of the Conqueror (and my comments on the EIS)

  1. lynnenittler says:

    Thank you for you previous blog that gave clear direction how I could write a letter and for this example. I already sent my letter using the information you provided that there is no need for this pipeline among other concerns that should be explored. Lynne

  2. DAPL Update: On March 7 a judge denied an emergency request to stop the pipeline (based on religious grounds), but the main legal case was not involved and is still moving forward. Details at https://indiancountrymedianetwork.com/news/politics/judge-denies-cheyenne-river-sioux-tribes-anti-dapl-argument/?mqsc=ED3875449

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