The US Army Corps of Engineers (Corps) violated the law when it didn't consider environmental impacts before issuing permits for the continued construction of the Dakota Access Pipeline (DAPL). That's the key point of U.S. District Court Judge James Boasberg's latest ruling, which he released Wednesday.
Boasberg said that while the Corps did comply with parts of the National Environmental Policy Act, it did not adequately consider important impacts the pipeline could have on communities downstream or adjacent to the pipeline.
Those issues Trump administration failed to address before giving the go-ahead to Energy Transfer Partners, LLC to restart construction include "the impacts of an oil spill on fishing rights, hunting rights, or environmental justice," a key grievance that complainants, including the Standing Rock Sioux and the Cheyenne River Sioux have had with the pipeline's approval.
"This is a a very significant victory and vindication of the tribe’s opinion," Jan Hasselman, lead attorney for the tribe's lawsuit against the Corps told the Atlantic. At the heart of the issue is that the Corps failed to consider that the tribe relies on hunting and fishing for sustenance, practices that would be at risk if there were a pipeline leak at some point in its operation. There was no environmental study done to determine the effects the chemicals used in cleanup operations would have on the ecosystem if there were an accident.
While the court did not demand that the pipeline cease operations while the Corps "reconsiders" environmental impacts, the ruling does recognize the very issue that prompted the lawsuit: that according to federal law, environmental impacts must be "considered" as a determining factor for whether to issue such permits.
The ruling also takes exception with how decisions were made in light of environmental data about environmental impacts. According to Boasberg, "[In] February 2017, [the Corps] did not sufficiently weigh the degree to which the project’s effects are likely to be highly controversial in light of critiques of its scientific methods and data. That statement may require future permitting agencies to not just consider precedents in terms of what has been permitted before, but what the current scientific findings are when it comes to the impact of chemicals, invasive cleanup operations and long-term disturbance of ecosystems from the transport of "controversial" products like oil.
While it's unclear whether the judge's ruling was pointing toward the impact of carbon emissions, some oil and gas critics may interpret it that way, pointing out that current research suggests that there is a link between high-emission operations and global warming.
Lastly, according to Atlantic writer Robinson Meyer, the ruling gives a nod to the rights of communities -- particularly communities of color and economically impacted neighborhoods -- that find their voice diminished because they live adjacent to an industrial project that doesn't actually cross their land. The Corps decision that the pipeline doesn't cross the tribes' lands is "technically correct," Meyer points out, but based on the judge's ruling, may not release the Corps and other agencies of due diligence when it comes to considering the long-range impacts of the project.
But where the tribes failed to win recognition in their case (as far as this ruling is considered) is in the argument that the omissions of an environmental impact statement were enough to order the oil company to turn off the taps.
The Corps “substantially complied with [the National Environmental Policy Act] in many areas," Boasberg wrote, rejecting the notion that the pipeline was illegal and should be shut off at this time.
Judge Boasberg has called for the parties to meet with him next week to review the next steps. The tribes are expected to argue that the pipeline should be shut off while the Corps reconsiders the potential environmental impacts of the project. It's unlikely the judge will rule in favor of a shutoff.
Still, this week's ruling could have long-term implications for future industrial projects that the Trump administration may have in mind, requiring more thorough considerations of not just the direct impacts of potential spills and environmental accidents, but the rights of communities nearby. And for environmental justice advocates who have long argued that industries and governments have a broader responsibility to nearby neighborhoods in the effects of their products and factories, that could be a big deal.
So too, could be the recognition that agencies charged with reviewing the environmental impacts of projects must consider and apply current research to the decision of whether problems like global warming are increased by the project. It's a topic that will likely be taken up by other litigants that see an opportunity to argue that oil transports and oil and gas industries now pose a risk to the planet and those communities it holds.
Flickr image: Fibonacci Blue
Jan Lee is a former news editor and award-winning editorial writer whose non-fiction and fiction have been published in the U.S., Canada, Mexico, the U.K. and Australia. Her articles and posts can be found on TriplePundit, JustMeans, and her blog, The Multicultural Jew, as well as other publications. She currently splits her residence between the city of Vancouver, British Columbia and the rural farmlands of Idaho.