Whose On First?
Opposition to the Dakota Access Pipeline goes on for ten years
Who’s on first? 05292026
At issue is protracted opposition to the Dakota Access Pipeline which delivers 250,000 barrels of oil per day from the Bakken Oil Field to Illinois. The Bakken produces 9% of U.S. oil production. The pipeline is the project of Energy Transfer.
The Standing Rock Sioux Tribe has opposed the pipeline for 10 years. The pipeline runs under Lake Oahe above the boundary of the Reservation. Source of the route under the lake is an easement granted by the Army Corp of Engineers.
The opposition has been validated by multiple oil spills emanating from the Keystone pipeline which also crosses North and South Dakota. Keystone spills have polluted water sources and farmland. One spill cost $44 million to clean up.
In 2020 a federal court agreed with a tribal suit and invalidated the easement under the lake. The tribe argued that the pipeline exposes its water sources and sacred areas to damage. The Army Corp of Engineers responded with a six-year long environmental impact review.
Greenpeace, an environmental nonprofit based in Netherlands with entities in the U. S., had actively supported the protests from the beginning. Energy Transfer sued Greenpeace in North Dakota. A jury found that Greenpeace was responsible for delays and extra project costs and awarded Energy Transfer $345 million in damages. If final, the award would bankrupt Greenpeace.
Responding to the award Greenpeace sued Energy Transfer in the Netherlands claiming that Energy Transfer’s suit violated the EU’s Strategic Litigation Against Public Participation law. North Dakota does not have a SLAPP law.
Energy Transfer next asked the North Dakota Supreme Court to curb Greenpeace’s authority to challenge the grounds of ET’s South Dakota victory by collaterally pursuing the suit in the Netherlands. The North Dakota court refused to prohibit Greenpeace from claiming that Energy Transfer’s suit was abusive. The Supreme Court’s order just told the lower ND court to prevent Greenpeace from claiming that the ND case lacked a legal foundation. Observers wonder how the ND court could restrict the latitude of the Dutch court at all.
It can be said that the North Dakota court still had Greenpeace under its thumb. The Supreme Court was also very discreet in exercising its jurisdiction. It is possible that the Dutch court will rule that the North Dakota jury award does not apply to the Netherlands based Greenpeace. But the American entities may still be exposed.
Step back and view the conflict and you can understand why everything is so costly and takes such a long time to complete in the good old USA. You can say so what, pipelines are just contributing to pollution and climate change. But what about affordable housing? The carousel goes round and round…