Judges question tribe’s quest to block pipeline

OREANDA-NEWS. October 06, 2016. A panel of federal judges appeared skeptical today of an effort by the Standing Rock Sioux tribe to obtain an injunction that would block construction on part of the 470,000 b/d Dakota Access oil pipeline.

The judges on the DC Circuit Court of Appeals today heard arguments on the tribe's request to block construction of the pipeline near Lake Oahe in North Dakota. That injunction would only cover about 4 miles (6.4km) west of the lake, where construction has yet to occur, the tribe's attorney Jon Hasselman said. But he said this small area had great cultural significance to the tribe.

The \\$3.8 billion pipeline, proposed by Dallas,Texas-based Energy Transfer, would carry crude from the Bakken formation to Pakota, Illinois, where it would link to another pipeline that extends to Texas. The Standing Rock Sioux tribe and other activists have been holding demonstrations near the pipeline's route in an effort to slow its progress.

The tribe argues that the US Army Corps of Engineers, which owns land near the lake and along 3pc of the pipeline's route, failed to meet an obligation to review the "indirect" effects of permitting the pipeline.

The tribe initially pushed for the corps to conduct cultural reviews along the full 1,136-mile (1,828km) length of the pipeline. But the three-judge panel hearing the case today questioned if there was legal basis to back up the tribe's push for broader review of the pipeline's effects.

"I am just not sure where you are getting your legal theory," judge Nina Pillard said. "You say indirect, how do we know what is indirect?"

The oral arguments come after the White House on 9 September requested a voluntary stop to construction within 20 miles of Lake Oahe to review the project's compliance with federal law. The corps also decided not to authorize construction under Lake Oahe until that review was complete.

The tribe has argued that the corps' cultural reviews were too narrowly focused. But the judges noted that the Standing Rock Sioux did not respond to requests from government officials to consult on the scope of those reviews, or to come to survey for culturally sensitive sites around the corps land.

Hasselman said that the tribe's members did not want to "stand around and look at a hole in the mud" because all of the federal land near Lake Oahe is located underwater. Judge Thomas Griffith said there was a "clear offer" from the corps to consult on the project.

"There are ways to go consult and preserve your arguments," Grifith said.

Judge Janice Rogers Brown asked why the tribe decided not to file a challenge to the scope of the review earlier. Hasselman said they needed to wait for a final decision before filing a legal challenge.

The DC Circuit on 16 September issued a temporary order blocking construction on the same 20-mile region. If the court were to reject the tribe's request for an injunction, construction on the pipeline could start in that area except under Lake Oahe, where the company needs an easement from the corps. Hasselman said the court could reach this decision within weeks.

Project attorney Miguel Estrada today said Energy Transfer planned to resume construction if the court's order was lifted. The company already has paid to have equipment and personnel in the area and could lose millions of dollars from further delays to the project, Estrada said.

"We are having to lay people off every day," Estrada said.

Corps attorney James Maysonett said he expected it would take "weeks, not months" for the agency to complete its review into whether the consultation process with tribes and other environmental reviews were sufficient. He did not provide a timeline for how long an additional review could take if one is required.

Energy Transfer did not respond for comment.

The tribe's chairman Dave Archambault today reiterated claims that pipeline construction has already destroyed their cultural sites, a point that Energy Transfer disputes.

"For me, I see a wrong has taken place," Archambault said today after nearly two hours of oral arguments in court.