Native Sun News: Tribes urged to support bill for pipeline spills

The following story was written and reported by Talli Nauman. All content © Native Sun News.

PIERRE, SOUTH DAKOTA — Sisseton Wahpeton Tribal Historic Preservation Officer Dianne Desrosiers is urging tribes to support a South Dakota state bill making crude-oil shippers pay for pipeline spills.

“To not have a mechanism to clean up a spill is just crazy,” Desrosiers told the Native Sun News. “They need to put some safeguards in place and it needs to be a requirement,” she said.

Consideration of the bill at the state level comes as President Barack Obama’s administration faces swelling pressure to act at the federal level on the Canadian petroleum giant TransCanada Corp.’s request for a permit to build a new tar-sands crude-oil pipeline through South Dakota, Nebraska and four other states.

The South Dakota bill calls for a two-cent per barrel fee on the crude oil shipments in order to create a government-run compensation fund for spills from TransCanada Corp.’s new Keystone I Pipeline in the eastern part of the state and its proposed Keystone XL pipelines in the western part.

State law currently holds landowners liable for cleanup and legal costs resulting from accidents or spills where pipelines cross their property.

The bill failed by one vote in last year’s legislature, having died in committee during previous congressional sessions. At press time, it had been introduced in both the state Senate and House of Representatives, with a hearing set Feb. 15 in the Senate Commerce and Energy Committee.

Desrosiers mailed letters of support for the bill to all the committee members; she also contacted other tribes’ cultural and historical preservation officers, encouraging them to do the same, she said.

“There will be a spill, and should a leak occur they wouldn’t know right away how it affects ground water. We need to have them take a look at corporate accountability to protect our aquifers,” Desrosiers said.

She was an expert adviser to four Sioux tribes that filed a federal court action to stop the Keystone I Pipeline construction in 2008. The Keystone I is among the first of many pipelines slated to begin carrying petroleum from Canada through the United States in the next several years. Other high profile routes include the Enbridge pipelines through Canada and the United States.

Enbridge Inc. has offered First Nations in Canada 10 percent of revenues from a proposed 730-mile Northern Gateway Pipeline that would carry tar-sands crude from Alberta to the Pacific Coast.

But 54 bands have refused to acquiesce to routing through their homeland reserves, due to environmental issues and alleged lack of meaningful consultation. This puts pressure on the oil industry to seek routes through the United States to refineries and to markets in China or elsewhere abroad.

“Unity for a common cause is what brought the tribes together to make a stand,” Desrosiers said of the Canadian situation. “This is what I am hoping could result if our tribes would unite, if not for the protection of our environment and cultural resources then perhaps for the monetary gain,” she said.

In their Keystone I legal action, the Sisseton-Wahpeton Oyate, Rosebud Sioux Tribe, Santee Sioux Tribe of Nebraska, and the Yankton Sioux Tribe charged former U.S. Secretary of State Condoleeza Rice and her staff with breaking treaty obligations, violating trust relationships and ignoring religious cultural protections.

“As far as tribes are concerned, the consultation process as defined in the National Historic Preservation Act was not a good faith effort on the part of the Department of State. In reality, it was forced upon the tribes (no big surprise),” Desrosiers said.

Subsequent Secretary of State Hillary Rodham Clinton successfully filed for dismissal of the case, based on the argument of lack of jurisdiction.

Desrosiers said the tribes can make a comeback. “We got shut down. That doesn’t mean we disappeared,” she said.

“I realize it is difficult for our people to put the necessary attention to some of these critical issues within our aboriginal homelands when most often we are dealing with the right-here-and- now issues of survival. But our people have survived through so much and we shall continue to persevere,” she added.

Environmentalists Besiege White House
Because the Keystone and Enbridge pipelines cross the international border into the United States, the Department of State is the lead agency in charge of preparing environmental impact statements to obtain EPA approval as well as issuing permits for the foreign companies’ projects.

On Feb. 4, some 86 environmental organizations representing millions of constituents delivered a letter to President Obama insisting his administration deny a permit for the Keystone XL Pipeline.

“When filled to capacity, Keystone XL would import up to 900,000 barrels per day of the world’s dirtiest form of oil … , drive further destruction of Canada’s boreal forest, bring the threat of dangerous oil spills through America’s heartland, [and] exacerbate air quality problems in communities surrounding the refineries that the pipeline would service,” the letter stated.

Tar-sands oil, also known as crude bitumen, is a high-carbon fuel that causes more environmental destruction and health risks than conventional oil. Because it is solid and heavy, it must be combined with toxic chemicals in order to run through pipelines in a liquid slurry resistant to temperatures.

The letter’s delivery was timed to coincide with a White House meeting between Obama and Canada’s Prime Minister Stephen Harper. Among agenda topics was the tar-sands crude oil that is extracted about 500 miles from the North Dakota-Alberta state and international boundary line.

Inside the White House Harper personally pulled for the pipeline permit, while the environmental groups staged a rally outside in Lafayette Park to emphasize the letter’s demand to block it. Protestors planted posters on the lawn, depicting South Dakota and each of the states along the Keystone XL Pipeline’s proposed right-of-way.

The pipeline would run 2,000 miles from Alberta to the U.S. Gulf Coast. It would span Montana, South Dakota and Nebraska, before connecting with the Keystone I Pipeline in Kansas, then proceeding on to the Gulf of Mexico through Oklahoma and Texas.

In South Dakota, the Keystone XL would stretch in a southeasterly direction across 313 miles through Harding, Butte, Perkins, Meade, Pennington, Haakon, Jones, Lyman, and Tripp counties.

Keystone I runs across more than 1,000 miles from Canada through North and South Dakota, Nebraska, and Kansas, where it turns east to Missouri and Illinois. Built through South Dakota in 2008 and 2009, it proceeds north-south through the counties of Marshall, Day, Clarke, Beadle, Kingsbury, Miner, Hanson, McCook, Hutchinson, and Yankton.

Oil Giant Gathers Supporters
TransCanada met the environmentalists’ rally with a concerted lobbying effort that secured a letter to Secretary Clinton from 30 U.S. House of Representatives Republicans and Democrats in 18 states supporting a permit for the Keystone XL Pipeline.

“The Keystone XL Project is a prime example of a critical private sector project delayed by a slow government bureaucratic process that is preventing the creation of thousands of jobs and millions of dollars in revenue,” the Feb. 10 letter stated.

Signers called the pipeline “an extraordinary opportunity to put Americans back to work, invest billions into the economy, and improve the security of this nation. Further delays in the approval process will continue to jeopardize this project's realization,” they added.

Florida Republican Rep. Connie Mack,Chair of the House Subcommittee of Western Hemisphere, initiated the letter. South Dakota’s Rep. Kristi Noem (R-SD) did not sign it. Neither did Montana, North Dakota, or Nebraska federal legislators. However, the letter included signers from the potentially impacted states of Texas and Kansas.

The rest were from Illinois, West Virginia, Utah, North Carolina, Indiana, Michigan, Pennsylvania, Georgia, Florida, Wisconsin, and Arizona.

The Kansas-based Koch Industries, arch opponent of Obama’s renewable energy policies, currently imports 25 percent of U.S. tar sands crude and would benefit monetarily from more, as would investors shipping it to China from Texas via the Panama Canal, according to analysts.

Meanwhile Back in South Dakota
The Vermillion, South Dakota-based Plains Justice legal advocacy firm has filed a Freedom of Information Act request with Obama’s Pipeline and Hazardous Materials Safety Administration to obtain documents on the preparedness and the emergency response system that should be in place for the Keystone XL Pipeline.

So far, the agency has been unwilling to disclose the plans that safety advocates consider vital to the public review process for holding foreign private oil companies accountable when spills occur, according to Plains Justice President and Founder Carrie La Seur.

“A spokeswoman for the PHMSA said that each request is processed on an individual basis and Plains Justice request is still being reviewed,” La Seur said.

Plains Justice has also sent PHMSA a letter requesting the agency reduce the already built Keystone I Pipeline’s allowable operating pressure until it can be fully tested. The law firm made the request after elaborating a report entitled “Use of Substandard Steel by the U.S. Pipeline Industry, 2007 to 2009.” The report is based on 3,710 pages of federal safety documents obtained under another Freedom of Information Act request. It shows that defective steel may have been used in the Keystone I.

“The Keystone pipeline is one of the largest pipelines in existence and will operate at very high pressure and high temperature, so it must not break,” Plains Justice Staff Attorney Paul Blackburn said when the report was released last summer.

Some 47 percent of the pipe used in Keystone I construction came from the Welspun pipe factory in India, which produced hundreds of substandard pipe joints in 2007 and 2008, at approximately the same time that TransCanada acquired pipe from the company and at the same time the company produced pipe for five other pipelines that were later found to contain defective pipe.

By the time the Plains Justice report and letter came out, TransCanada already had received a federal waiver to exempt it from meeting high-strength steel pipe material requirements in the United States.

“I don’t know why we are make amenities to an international outside company that has no stake here. Their ancestors and descendants haven’t been here,” said Desrosiers. “We hold the tribes in South Dakota to higher standards than we do a foreign company running pipelines through the state,” she said.

Better Safe Than Sorry -- Question of Self-Defense
Desrosiers also questioned state authorities’ failure to protect local communities in the pipeline’s route to date. “What is the state of South Dakota getting out of this?” she asked, adding, “Somebody’s getting something.”

In procuring property for its routes, TransCanada’s contractors invoke states’ rights of eminent domain to condemn land if owners don’t accept company easement offers. As a result, even before a permit has been granted for the Keystone XL, South Dakota and Nebraska ranchers have become embroiled in several lawsuits along its proposed route. The scenario is similar to the one that occurred in achieving the Keystone I Pipeline right of way.

Meanwhile in Montana, the Northern Plains Pipeline Landowners group and Northern Plains Resource Council have submitted a letter asking the Montana Department of Environmental Quality, Director Richard Opper to require a supplemental Environmental Impact Statement for the so-called Bakken Marketlink connection station of the proposed Keystone XL Pipeline.

The tribes in the Keystone I lawsuit complained that the State Department required only 23 percent of the pipeline corridor in their territory be surveyed for cultural properties, despite multiple requests for a more thorough assessment.

That contrasted with the process in Illinois and Missouri, where the department granted a100-percent survey of the construction corridor.

TransCanada argued that property owners in the Dakotas were to blame for hampering contractors’ access to property and refusing to cooperate in cultural resource assessment.

Desrosiers told the State Department the Sisseton Wahpeton Oyate flat-out rejected the draft Environmental Impact Statement. “Due to the amount of area which was not surveyed, we cannot in good conscience make a comment on the draft,” she said during the public consultation process.

(Talli Nauman is co-director of Journalism to Raise Environmental Awareness. Contact her at

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