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Serious safety, legal concerns hang over nearly operational Dakota Access Pipeline

Incomplete spill plans and pending legal challenges complicate the controversial pipeline’s operational debut.

CREDIT: AP Photo/Alex Brandon
CREDIT: AP Photo/Alex Brandon

Oil is slated to begin flowing through the Dakota Access Pipeline as early as June 1, but legal questions and safety concerns continue to plague the controversial project.

Construction of the pipeline was put on hold in December by then-President Barack Obama, only to be accelerated by President Donald Trump via an executive memorandum issued in January — but it still faces multiple outstanding legal challenges, questioning both the environmental impacts of the project and its potential impact on tribal nations.

On February 14, the environmental law firm Earthjustice filed a motion for summary judgement on behalf of the Standing Rock Sioux Tribe, asking a federal court to rule on three major legal concerns with the project. They argued that the project failed to meet the legal requirements for a full, transparent public environmental review for any project with “significant” environmental effects, which, if true, would be in violation of the National Environmental Policy Act (NEPA). They also contend that the pipeline’s approval runs afoul of treaty rights that guarantee the Standing Rock Sioux sovereignty over their own lands. And finally, they argue that Trump’s reversal of Obama’s temporary pause on construction of the pipeline — pending a larger environmental review — was neither fully justified nor explained.

Jan Hasselman, Earthjustice’s lead attorney on the case, said there are currently no scheduled hearings or deadlines for a judgement on their motion for summary judgement, and he doubts that a ruling will come before the pipeline’s scheduled operational debut on June 1. Still, he said, even if oil begins flowing through the pipeline, that doesn’t signal an end to the legal fight against the project.

“From a legal perspective, the start of operations doesn’t really mean much,” Hasselman told ThinkProgress “If the permits were issued illegally, then they have to be vacated. And if the Dakota Access Pipeline doesn’t have a permit, they have to turn the pipeline off.”

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But it’s not just legal questions plaguing the pipeline. Energy Transfer Partners, the company behind the Dakota Access Pipeline, still has not produced a spill response plan in case the pipeline ruptures under the Missouri River, which is located just upstream from the Standing Rock Sioux’s reservation. Tribal leaders and environmental protesters have long argued that a spill under the Missouri River could contaminate the tribe’s only source of drinking water; despite those concerns, Energy Transfer Partners is under no deadline to come up with an emergency response plan for a potential spill into the Missouri River, nor are they required to store emergency spill equipment near the site for another year.

“It’s nuts,” Hasselman said. “How can you operate a half a million barrel a day pipeline under a waterway that serves 17 million people for a year before you have your emergency response plan in place?”

A U.S. District Judge also ruled in April that Energy Transfer Partners can keep some information about the pipeline — such as areas at particular risk of spills and ruptures — secret from the public. Judge James Boasberg argued that keeping such information secret would shield the pipeline from vandalism, though the Standing Rock Sioux and Cheyenne River Sioux tribes argued that information about particular spill risks could strengthen their case for a more intensive environmental review of the project.

And while Energy Transfer Partners has long argued that the pipeline “is the safest and most environmentally sensitive way to transport crude oil,” the pipeline has already suffered its first spill, despite not even being fully operational. On April 6, according to government regulators, the pipeline sprung a leak at a South Dakota pump station, spilling 84 gallons of crude oil into the surrounding environment. And while that spill was relatively minor — and quickly contained, according to South Dakota state officials — the incident sparked swift criticism from both the Standing Rock Sioux and Earthjustice attorneys, who argue that it merely illustrates the pressing dangers associated with the pipeline.

“The Dakota Access pipeline has not yet started shipping the proposed half million barrels of oil per day and we are already seeing confirmed reports of oil spills from the pipeline,” Standing Rock Sioux Tube Chairman Dave Archambault II said in a statement. “This is what we have said all along: oil pipelines leak and spill.”

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And the South Dakota incident isn’t the only Energy Transfer Partner’s spill last month: The company was also behind two spills of over 2 million gallons of drilling fluid into Ohio wetlands in mid-April. Those wetlands, an Ohio EPA spokesman told ThinkProgress earlier this week, won’t recover for decades. Those spills occurred while the company was constructing a different pipeline, but happened while workers were employing the same drilling technique —known as horizontal drilling — the company used to construct the Dakota Access Pipeline beneath the Missouri River.

Hasselman said that while the company has argued that using state-of-the-art techniques like horizontal drilling would make the Dakota Access Pipeline less likely to leak, the company’s recent spills throw that claim into question.

“Their message to the [Army] Corps has been, ‘This is state of the art, this is modern and leaks aren’t going to happen,’ and we’ve always known that was not right,” he said. “And here we are.”

Advocates for pipelines argue that they are a safer method of transporting fossil fuels than oil trains, though analyses show that while oil train spills occur more frequently, pipeline spills often discharge larger amounts of pollutants into the environment. And North Dakota — where the Dakota Access Pipeline crosses under the Missouri River — is no stranger to pipeline spills. According to analysis from the Center for Biological Diversity, North Dakota has averaged four pipeline spills annually since 1996, which have cost more than $40 million in property damage.