-- The company building the controversial Dakota Access Pipeline is seeking a ruling that would allow it to seal or redact “sensitive information” in a court filing to prevent what it characterizes as potential terrorists or other malicious actors from using the information to damage the pipeline.
"Given the intense amount of public attention this pipeline has received, and the unlawful activity already experienced, there is a greater than typical risk that this information would be misused to harm the public," the filing states.
The motion for a protective order on the documents was filed late Wednesday by Dakota Access, LLC, in federal court in Washington, D.C., in connection with civil litigation brought by the Standing Rock Sioux and Cheyenne River Sioux Tribes against the U.S. Army Corps of Engineers and Dakota Access.
At issue are 11 documents that Dakota Access says contain specific details of pipeline routes through private land and emergency spill response plans in the event of an accident or intentional sabotage. The documents were in one filing made under seal Wednesday night.
"The information could only be useful," the motion states, "to terrorists or others with the malicious intent to damage the pipeline in a way that maximizes harm to the environment."
The filing notes that the tribes, which are suing to halt the pipeline's completion, have not consented to the sealing of documents and "insist on being able to release the documents without redaction." The Army Corps has also objected to the company's proposal, according to the filing, noting that many of the documents the company seeks to seal are already available in the public record elsewhere.
In a phone interview Thursday, Jan Hasselman, an attorney for the Standing Rock Sioux, told ABC News that the documents the company is seeking to shield from public view are “precisely the kinds of things that should be subject to close public scrutiny.”
“The idea that somehow this is a security risk is complete nonsense,” Hasselman said. “Everybody knows where the pipeline is. Hiding oil spill risk analysis does nothing to protect the pipeline from terrorists. It’s absurd.”
The Trump administration has made the completion of the Dakota Access Pipeline an early priority. In a presidential memorandum signed on Jan. 24, President Donald Trump directed the secretary of the Army and the Army Corps of Engineers to “review and approve” the pipeline in an expedited manner, to the extent permitted by law. Earlier this week, the Army said it had begun the process of implementing the president’s directive.
The 1,172-mile crude oil pipeline is nearly complete save for a section under the Missouri River at Lake Oahe in North Dakota, which is just north of the Standing Rock Sioux reservation. Crossing federal property at the lake requires approval from the Army Corps of Engineers.
In the waning days of the Obama administration, Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy declined to issue an easement for the crossing, and directed the Army Corps of Engineers to instead explore alternative routes for the pipeline and to initiate a full Environmental Impact Statement (EIS), a process which can typically take years. The Army Corps had in July of last year, in a less stringent review called an Environmental Assessment, determined that the project posed no significant threat to the environment.
In the early December announcement, Darcy noted that because of security concerns and sensitivities, several documents, including spill models and risk analysis assessment used by the Corps in evaluating the project, were withheld from the public and the tribes during the assessment. Darcy encouraged the Corps to allow the tribal leaders and their experts access to those documents which “are central to the concerns raised by the Standing Rock Sioux and other tribal nations.”
“This isn’t about the litigation, this is about the EIS process and the opportunity for the public and experts and other tribes to be able to understand the risks of this project,” Hasselman said. “How can the government have reached a conclusion that this project doesn’t have significant environmental consequences when it relied on oil spill analyses prepared by [Dakota Access] and never shared with the public?”
In its court filing Monday, the company argues that public disclosure of the documents “will create unnecessary risks to the public at large,” by pinpointing locations where someone with malicious intent could “wreak the greatest possible harm from those unlawful acts.”
"A person with ill intent should not be able to plan his unlawful actions based on how authorities will respond to those actions," the filing states. "The risk of terrorist actions aimed at the oil industry should not be taken lightly."