DAPL protest file photo

Three Standing Rock youth ride on horseback at the Oceti Sakowin camp during the Dakota Access protests in this file 2016 photo. Tribes filed a response in court Friday saying that Dakota Access is exaggerating the harm a shutdown would have. 

The impact of shutting Dakota Access down is “modest and manageable,” Standing Rock Sioux and other tribes said in court documents filed late Friday in round two of their efforts to force DAPL to cease operation.

The tribe’s response to DAPL’s updated economic impact analysis was filed on the same day that an appeals court upheld the lower court’s ruling requiring the U.S. Army Corps of Engineers to conduct a lengthier environmental study due to the controversial nature of the pipeline. That decision clears the way for a second hearing into whether the pipeline, which no longer has a valid easement for the crossing under Lake Oahe, must shut down while the additional study is completed.

In its analysis last week, Dakota Access said shutting down means billions in losses for the state of North Dakota, its oil and gas industry, and the pipeline company itself.

But Standing Rock Sioux’s attorney Jan Hasselman said DAPL is exaggerating the harm a temporary injunction would cause. The attorney submitted an independent market analysis by S&P Global Ratings, which said a temporary DAPL closure would not affect its credit ratings for Bakken producers. Hasselman also cited statements from Hess and Continental officials during recent earnings call, in which each company’s CEO said they are prepared for a shutdown and expect to face only marginally higher transportation costs.

Hess CEO John B. Hess told investors the company’s existing midstream assets gives it the capacity to move all of its Bakken production, thanks to the “flexibility provided by our marketing capability; our [Hess Midstream LP] infrastructure and long-term commitments to multiple markets,” Hasselman wrote.

The company would plan to ship oil by rail, as well as other pipelines they already move oil on.

“So it would not have a major impact on moving all of our production if DAPL were shut in,” Hess told investors. “And the cost to us would be a few dollars per barrel.”

The tribes also suggested North Dakota is overly optimistic when it comes to the prospects for oil’s recovery, and they are thus overestimating tax losses the state is likely to experience from depressed production.

But economic harm should not be what the court focuses on anyway, the tribes contended. Success on the merits should be the first consideration, especially given the “terrible history of the U.S. government’s dispossession of the Great Sioux Nation’s resources, as well as its ongoing trust duty that governs its actions today.”

“(The tribes’) long-standing position that the project was never reviewed properly has been vindicated both by this Court and the D.C. Circuit,” Hasselman wrote. “As of today, the pipeline is operating without a valid permit, in violation of the Mineral Leasing Act and NEPA. The Court has already ruled that the violations are so ‘serious’ that the pipeline needs to be shut down, and nothing in DAPL’s latest filing compels a different conclusion.”

The tribe also continues to have concerns about the safety of the pipeline, and disputed DAPL’s claims that it is spill free.

“The DAPL-ETCO line has suffered 12 spills, comprising 6,000 gallons of crude during its brief lifespan,” Hasselman wrote. “The other ETP-managed pipelines tracked by Tribal safety managers from 2012 to present spilled on 290 occasions, an average of 2.9 spills per month, 32 percent of which were deemed significant incidents under federal regulations.”

What’s more, Hasselman said, is that ETP tends to have significantly larger spills in High Consequence Areas.

“DAPL is a major pipeline with a massive capacity adjacent and underneath a uniquely sensitive and important waterway, the Missouri river. It is DAPL that is engaging in apples to oranges comparison by setting it alongside minor pipelines in less sensitive locations.”

A spokesperson for Dakota Access clarified that the 1,200 miles of pipeline that lie underground have had no spills. "

"There have been a few small releases at DAPL’s above-ground facilities (i.e. pump station), mostly during commissioning," said Lisa Coleman, PR and Communications for Energy Transfer. "All of these were less than 5 barrels, were within our property, and none impacted water. The number of releases in their filing goes beyond DAPL to include the ETCO pipeline system, which again, had only had a small number of incidents at above ground facilities with no impact to water."

Hasselman, meanwhile, said the pending expansion of the DAPL route — already permitted and under construction — is another reason an injunction should be granted.

“The Corps has never confirmed that it will prevent DAPL from violating its permit by doubling crude volumes without a permit modification,” Hasselman wrote. “Not only is DAPL asking to continue illegal operations to mitigate economic harm, at the expense of the Tribes, it intends to compound the harm by doubling the risk and potential for catastrophic impacts.”

The tribe also mentioned the MHA nation in its response, which it said had previously supported Standing Rock Sioux and other tribes’ efforts to block construction of Dakota Access.

“Like plaintiff tribes, MHA Nation is a sovereign, and is free to change its position, although its assertions about economic impacts carry little weight if unsupported by admissible evidence,” Hasselman wrote. “The Tribes have never denied that shutting down the pipeline would have impacts; however, they have emphasized that the profits of other should not come at the expense of the Tribes, especially when the law has not been followed.”

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