Standing Rock: Court victory may be short lived

I’ve just finished reading the 91-page ruling from US District Court Judge Boasberg. Touted as a “major victory” for the Standing Rock and Cheyenne River Sioux Tribes, there’s still a lot to be worried about as legal proceedings continue.

First, the Tribes only prevailed on three of nine arguments; the other six were rejected. Counting two earlier arguments rejected last year, the Tribes are three for eleven. But it only takes one to stop the pipeline. Yet, the pipeline is not yet stopped. More on that later. First, here’s a summary of the Tribes’ arguments and the judge’s replies:

court rulings infogram

The most disturbing trend in the judge’s logic is his repeated refrain that he will not question the Army Corps’ analysis in the Environmental Assessment (EA), but will instead defer to their expertise and judgement in evaluating an issue. He only requires that they consider an issue and give it a “hard look”.  For example, the EA acknowledges that a spill might impact the Tribes’ drinking water, but the risk of a spill is “low” and the nearest drinking water intake is 26 miles away. For the judge, this is enough. The Corps has considered the issue, used facts, and reached a conclusion. End of story.

Upon reading the entire decision, I get the impression that the Corps can satisfy this judge by simply amending the EA and adding in a few sentences about competing scientific reports (e.g. “Scientific experts disagreed on stuff.”), another sentence on treaty rights to hunting and fishing (e.g. “The risk of impacts to hunting and fishing is low.”), and perhaps a paragraph or two on environmental justice (e.g. “The Tribes’ cultures give special value to the water, but the risk to impacts is low.”). With these boxes checked, it seems this judge would be satisfied.

Another indication of where this is heading is the judge’s “remedy”. Normally, when an EA is found to be insufficient, all permits are revoked, the project is put on hold, and additional environmental review is required. Not so in this case. While the judge acknowledges this is the “standard remedy”, he states he is exercising his “discretion” because of the “serious consequences” to the pipeline. He will rule on this later, after hearing additional arguments from both sides. The judge provides no justification, but presumably he is concerned about the flow of oil and economic impacts of shutting down the pipeline. This is baffling considering the pipeline is scarcely needed under current Bakken output, which is depressed because of the low price of oil, which in turn is primarily driven by the US flooding the world markets (and its own refineries) with too much oil. Indeed, the only serious consequences are to the pocketbooks the Energy Transfer Partners (ETP) and their attempt to steal market share from the other pre-existing Bakken pipelines. Meanwhile, the serious risk to the Tribes is ignored, who face catastrophic impacts if there was a significant oil spill (and several have occurred along the Missouri River watershed in the past few years).

The judge’s unwillingness to take a “hard look” himself at the Corps’ analysis and conclusions, as well as his hesitancy to shut down the pipeline or demand an Environment Impact Statement (EIS), reeks of a familiar bias often encountered by tribes in US courts. In the introduction to the ruling, the judge lays out an astounding case against the Corps. An EA must reach one of two conclusions:

  1. Finding of No Significant Impact (FONSI), in which case the project can move forward; or
  2. Require an EIS, a detailed study of all possible impacts, with expert and public comment.

In this case, when the Corps released the Draft EA in December 2015, the Standing Rock Sioux Tribe (SRST), Cheyenne River Sioux Tribe (CRST), Department of the Interior (DOI), and Environmental Protection Agency (EPA) all commented that a FONSI was unsupported and that an EIS was warranted. It’s unusual for one federal agency to comment on another.

[For a full discussion of EA’s, EIS’s, the process, and links to the actual documents, see this post.]

Nevertheless, the Corps ignored all of this and issued a Final EA and FONSI, largely prepared by ETP, on July 25, 2016. The SRST filed this lawsuit two days later. Meanwhile, ETP was busy building the pipeline at breakneck speed, even though they did not have all the permits in place.  That’s when the water protectors stepped in. It was clear ETP wanted to pressure the various government agencies, and, thinking ahead, this judge, with a fait accompli.  Obama asked them to stop twenty miles from the river in case an alternate route was selected. In the late summer and fall of 2016, ETP ignored this request, knowingly plowed Sioux gravesites, and laid pipe up to the river, with all the attendant military support and use of violence.

The judge’s write-up reveals some interesting history. The local Corps officials were in ETP’s camp all along. When pressured from Obama and officials in Washington to engage the SRST in “additional discussion”, the Corps reluctantly agreed, meanwhile defending their EA/FONSI as “warranted”. On December 3, 2016, the day before the momentous decision to not grant the easement and instead pursue an EIS, the local Corps District Commander still wanted to grant the easement. In their statement on December 4, the Corps still slipped in a comment asserting that, while they would do an EIS, the EA/FONSI was “legal”. Considering the Corps devastated both these Tribes in 1960 with the creation of Lake Oahe, forcing people from their homes and flooding the most fertile parts of the reservations, this treatment is part of a long and sordid history. Yet the judge sees no bias in the Corps’ behavior and EA, and makes no mention of ETP’s pressure tactics and cozy relationship with the Corps.

The judge’s rejections of some of the Tribes’ arguments are frustratingly difficult to comprehend.  First, there was his rejection last fall regarding DAPL impacts to cultural and historic sites, ruling that the Corps and ETP did their due diligence in consulting a national database, even while the SRST told them repeatedly that there were additional historic sites not in the database (which is quite common). In the end, the SRST provided ETP with the lat-longs of the additional sites in the way of the pipeline. ETP responded by leapfrogging ahead of schedule and bulldozing those sites. Furious Sioux were then beaten back with attack dogs.

In the recent ruling, the judge’s analysis of the $10 million liability cap is fraught with bad math and bad logic. When requiring insurance coverage, we generally want the insurance to cover most but not necessarily the most extreme accidents. This requires some knowledge of the distribution of costs. In this case, the only number the judge had was the average cost of an oil spill, which was $2.2 million for the particular database. This may or may not have included a myriad of small leaks (thus bringing down the average) and likely included spills to dry land that never reached water (which are much cheaper to clean up). Even a moderate spill to water, like Lake Oahe, would have a daily burn rate of at least $300,000 in cleanup costs—and this doesn’t even include addressing impacts to third parties (such as the Tribes) and future habitat restoration. It’s not hard to imagine a spill impacting Lake Oahe exceeding $50 million in total costs. The total costs for the 2010 Kalamazoo River pipeline spill exceeded $500 million. With no knowledge of the range of potential costs, or the factors that drive costs (such as impacts to water), the judge reasoned that 10 was higher than 2.2 so it must be sufficient. It’s a bit like saying the average homeowner’s insurance claim is $2,000, so a $10,000 policy must be sufficient, even though your home is worth a whole lot more than that.

With this ruling, the Tribes may have received some small victories, but the pipeline is still running, delivering extra profits to one company, while the Tribes’ homes, livelihoods, and cultural practices remain at risk.  The Tribes may have to hope for a better judge should they appeal a future ruling.


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One Response to Standing Rock: Court victory may be short lived

  1. lynnenittler says:

    Thanks for this clear if discouraging analysis of the 91-page document! I appreciate your expertise all the way through this process is giving us guidance to understand the legal moves. It’s heartbreaking to realize how little the Standing Rock Sioux have gained so far.

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