As we previously reported on this blog, in June, Federal District Court Judge James Boasberg found that the U.S. Army Corps of Engineers (the Corps) did not fully comply with the National Environmental Policy Act (NEPA) when it granted easements to the Dakota Access Pipeline (DAPL) to cross Lake Oahe, a federally regulated water in North Dakota. Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 16-cv-01534 (June 14, 2017). In light of that ruling, Plaintiffs, the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe (the Tribes) asked the court to vacate the DAPL’s permits and easements and enjoin further operations until the Corps fully complies with NEPA. In October, Judge Boasberg denied the Tribes’ request and allowed DAPL to continue operations while the Corps completes its supplementary NEPA analysis.
Following the October ruling allowing operations to continue, in November, the TransCanada Keystone Pipeline leaked an estimated 210,000 gallons of crude oil in South Dakota. Following this widely report pipeline oil spill, on December 4, 2017, Jude Boasberg ordered DAPL owner, Dakota Access, LLC, the Corps and the Tribes to “coordinate to finalize an oil-spill response plan affecting Tribal resources and lands at Lake Oahe.” Judge Boasberg also ordered Dakota Access, with input from the Tribes, to hire an independent third-party engineering expert to conduct a compliance audit of the DAPL. Both the oil spill response plan and the compliance audit report must be submitted to the court by April 1, 2018.
In addition, Dakota Access was ordered to submit bi-monthly reports to the court providing detailed information with respect to the segment of the pipeline crossing Lake Oahe. These bi-monthly reports will include:
- Inline-inspection run results or direct-assessment results performed on the pipeline during the reporting period;
- The results of all internal-corrosion management programs and any actions taken in response to findings of internal corrosion;
- Any new encroachment on the right‐of‐way during the reporting period;
- Any new integrity threats identified during the reporting period;
- Any reportable incidents that occurred during the reporting period;
- Any leaks or ruptures that occurred during the reporting period;
- A list of all repairs on the segment made during the reporting period;
- Ongoing damage-prevention initiatives on the pipeline and an evaluation of their success or failure;
- Any changes in procedures used to assess and monitor the segment; and
- Any company mergers, acquisitions, transfers of assets, or other events affecting the management of the segment.
Judge Boasberg explained the reasoning behind his decision as follows:
Recent events have made clear, moreover, that there is a pressing need for such ongoing monitoring. Earlier this month, the Keystone Pipeline leaked 210,000 gallons of oil in Marshall County, South Dakota.…The spill occurred near the boundaries of the Lake Traverse Reservation, home of the Sisseton Wahpeton Oyate Tribe, thus highlighting the potential impact of pipeline incidents on tribal lands.
Dakota Access must file these detailed reports beginning December 31, 2017, and every 60 days thereafter until the remand is complete. The Corps anticipates completing its supplemental NEPA analysis by April 2018, at which point the court will determine whether the Corps has fully complied with NEPA.