Oil pipeline builders face new court challenges

GREAT FALLS, Mont. – The oil industry took more heat from the courts July 14 and 16, with filings unfavorable to the builders of both the Keystone XL Pipeline and the Dakota Access Pipeline — projects that tribal governments oppose.

On July 14, Bold Alliance announced it filed a new lawsuit here in Montana U.S. District Court to follow up on its recent victory at the U.S. Supreme Court blocking Keystone XL Pipeline construction through waterways as wrongfully permitted by the U.S. Army Corp of Engineers.

In the new suit, Bold Alliance is joined by plaintiffs at the Center for Biological Diversity, Friends of the Earth, Natural Resources Defense Council, and the Sierra Club, charging U.S. Interior Secretary David Bernhardt for the Bureau of Land Management’s “unlawful grant of a right-of-way and temporary use permit for the proposed Keystone XL Pipeline project.”

The filing is the latest in a series of hurdles facing Keystone XL Pipeline’s parent TC Energy (formerly TransCanada Corp.). They include several other legal challenges, oil market chaos, and a recent commitment by presumptive Democratic candidate Joe Biden to rescind the pipeline’s permit should he be elected president.

The Indigenous Environmental Network, Rosebud Sioux Tribe, and Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation are leading pending challenges to Keystone XL in the same court.

“Construction of the polluting Keystone XL Pipeline would be devastating for the tribes, farmers and communities along its route,” said Friends of the Earth Legal Director Marcie Keever.

“Those on the frontlines of dirty fossil fuel projects deserve a comprehensive environmental review to understand how those pipelines will impact their health and our environment,” she said.

The complaint alleges that the Bureau of Land Management permit for the tar-sands crude-oil conduit to cross approximately 44 miles of federal public lands in Montana suffered from faulty review by BLM and the U.S. Fish and Wildlife Service.

It cites violations of the National Environmental Policy Act and Endangered Species Act. Keever pinned the alleged errors on U.S. President Donald Trump, who is running neck-in-neck against Biden in election year polling.

“Like every action from the Trump Administration, this is another attempt to ignore environmental and health concerns to curry favor with corporate polluters. Blocking this pipeline will help stop this administration’s ongoing corruption,” she said.

An appeals court fined Energy Transfer Partners (now Energy Transfer LP), the company behind the controversial Dakota Access Pipeline (DAPL) in North Dakota, for building its Bayou Bridge Pipeline across private property before acquiring the legal rights to do so.

The grassroots struggles against those two pipelines connected tribal members from one end of the Mississippi River to the other. They dubbed the Louisiana segment of the line the tail of the black snake that slithered through Standing Rock Sioux treaty territory in North Dakota carrying Bakken fracked oil to the Gulf of Mexico.

In Lake Charles, Louisiana, on July 16, the Third Circuit Court of Appeals for the State of Louisiana ruled that the Energy Transfer Partners’ joint-venture Bayou Bridge Pipeline Co. (BBP) violated the due process rights of landowners when it cleared trees, dug trenches and laid pipe in the ecologically sensitive Atchafalaya Basin.

The court awarded each of the property owners $10,000 and legal fees. “This is a victory not only for us but for all landowners,” said Theda Larson Wright, one of the plaintiffs.

“All over the country, pipeline companies have destroyed people’s land, often without even attempting to get permission, and dared the landowners to speak up,” she said. “Well we did. I hope this victory will encourage many others to, as well.”

While lauding the ruling and award of damages and fees for the violations of landowners’ rights, attorneys expressed disappointment the decision allowed the expropriation of the land to stand and held that Louisiana’s delegation of the power of eminent domain to private oil pipeline companies was constitutional.

The Center for Constitutional Rights and Atchafalaya Basinkeeper provided the attorneys for the plaintiffs.

Meanwhile, the U.S. District of Columbia Circuit Court of Appeals gave Energy Transfer LP’s Dakota Access Pipeline a reprieve when it granted a temporary stay July 14 so the company will not have to shut down and drain the oil from the line while it appeals a recent lower court decision to do so until the U.S. Army Corp of Engineers conducts an environmental impact statement review.

The Standing Rock, Yankton, Cheyenne River, and Oglala Sioux tribes sued over DAPL to defend constituents against violations of the 1851 Ft. Laramie Treaty, which guaranteed the land rights on the pipeline route in Lakota Territory to the Oceti Sakowin, or Seven Council Fires of the Great Sioux Nation.

Another Bakken fracked oil carrier received a shutdown order on July 2 from the Bureau of Indian Affairs, after Ft. Berthold Indian Reservation tribal landholders unsuccessfully fought in court for years to prove pipeline trespass.

BIA High Plains Regional Director Tim LaPointe determined that “a pipeline owned and utilized by Andeavor-Tesoro Pipeline is encroaching on trust lands without an approved right of way, resulting in trespass.”

According to tribal trust landholder and journalist Jodi Rave Spotted Bear, LaPointe established that negotiations had broken down between the parties in the court case, and the operator of Tesoro High Plains Pipeline must pay the injured parties $187 million within 30 days from the shutdown order.

“Even now, the $187 million offer made to landowners owning the majority of land tracts is still unconscionably low,” Rave wrote. “The figure represents 70 days of crude oil throughput. The fact is crude oil has passed through the pipe for 2,571 days. The value of that oil amounts to nearly $7 billion.”

That’s without considering the oil is worth a lot more once it is refined in Mandan, North Dakota, she noted.

According to Rave, The High Plains Pipeline trespass includes 44 tracts of land totaling 90 acres belonging mostly to individual landowners on Fort Berthold. The tribe owns 10 tracts. The July BIA notice Tesoro addresses 23 land tracts, which comprise 50 of the 90 acres in question.

 

(Contact Talli Nauman at talli.nauman@gmail.com)

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