Dear relatives,
As the summer solstice has come and gone and the time for reflection and ceremony is in full swing for many of our peoples and communities, we’ve been quiet recently–but in that silence, have been hard at work to honor the Water and defend it in every way we can. Seven years later, we are still standing with Standing Rock and have an important #NoDAPL update for you.
On July 3rd, as many prepared for Independence Day festivities, WPLC filed a motion to intervene as a non-party in the ongoing SLAPP suit by Energy Transfer LP (“ET”) against Greenpeace et al., in a legal move to protect Lake Oahe, Water Protectors, and the public right to know vital information related to pipeline safety and corporate accountability.
The Motion sheds light on critical DAPL pipeline safety issues and possible water contamination of Lake Oahe. We argue that a protective order, established in 2021, shields critical documents and information from the public and from local, state, federal, and Tribal agencies responsible for public safety. These include at least 8,000 sealed documents (and likely more in recently produced 500,000 pages produced by ET to Greenpeace in the last two months) related to pipeline safety, which WPLC asserts are essential for protecting the water of Lake Oahe, the Missouri River, and surrounding ecosystems. Per the terms of the protective order, at the close of the case through trial or settlement, the sealed documents must be destroyed.
Through our research over the past several months, we have gone through hundreds of documents in the SLAPP suit, in a case where hundreds of thousands of documents have been produced and are part of the record. In an expert report prepared for Greenpeace, experts found that during DAPL construction, there were numerous errors and inconsistencies in the calculated soil maximum drilling pressure limits. Experts determined there was a “relatively high” probability that during drilling under the Missouri River at the Lake Oahe crossing, “1.4 million gallons of drilling fluids” were lost in 700 events ending up in Lake Oahe.
This information is especially concerning in light of the ongoing operation of DAPL without proper permits since 2020 and ET’s poor safety record, including federal debarment by the EPA. Federal debarment results when parties are not “presently responsible” or “have engaged in criminal or other improper conduct, or demonstrated serious poor performance of such a compelling and serious nature that would lead one to question their honesty, ethics, or competence.”
ET was federally debarred by the EPA due to 48 criminal convictions in Pennsylvania stemming from concealment and failure to report drilling fluid leaks and use of unapproved additives such as diesel fuel resulting in water contamination at 21 sites during its construction of the Mariner East II, Rover, and Revolution pipelines in 2017. Unlike the Attorney General for the State of Pennsylvania, North Dakota’s Attorney General has not investigated ET’s safety in the construction or operation of DAPL. Moreover, during a recent hearing, ET argued that it is not required to report loss of drilling fluids or other accidents to the U.S. Pipeline and Hazardous Materials Safety Administration (“PHMSA”) while a pipeline is under construction. This is contrary to the spirit and purpose of regulations which mandate ongoing disclosure of such incidents to PHMSA throughout construction and operation.
WPLC argues that without public oversight, the interests of affected communities and the broader public, especially regarding clean water and environment safety, are not adequately represented. The Motion aims to ensure transparency and corporate accountability. The public interest in accessing this information outweighs any confidentiality claims by the parties. At a time when the Supreme Court has just diminished the power of federal agencies to protect the public, the Clean Water Act has a special provision that was put in place by Congress that hands power to the people to bring “citizen suits” to make sure the words on paper mean something.
This is a matter of principle. At a time when principles seem to be exiting stage right, we cannot sit idly by and watch environmental regulations be rendered meaningless. They have to count for something. The motion to intervene is a vehicle to safeguard crucial evidence in this case that should be public information for Water Protectors and the public. Pipeline safety documents and construction accidents cannot and should not be considered privileged or otherwise ‘proprietary information’ that can be cloaked under a veil of corporate secrecy.
The SLAPP suit filed by ETP against Greenpeace and others, sought to silence and intimidate those who have opposed the Dakota Access Pipeline, a project that since inception, has posed significant environmental and cultural risks to the Standing Rock Sioux Tribe. The release of previously-withheld evidence that may show significant impact to the Water that Water Protectors at Standing Rock sought to defend, would confirm what many advocates argued then and continue to argue about the nature of pipeline construction and operation: it is not a matter of “if” but “when” - pipelines leak and we cannot drink oil.
Now as always, we are committed to protecting the water of Lake Oahe, the Missouri River, surrounding ecosystems, and the public’s right to access vital information. Lake Oahe, part of the Missouri River, is the primary source of water for the Standing Rock Sioux Reservation and Cheyenne River Reservation, in addition to being a popular fishing destination for citizens from the Dakotas and surrounding region. Over 12 million people live in the Missouri watershed, which provides municipal water supply for over 3 million people, feeding at least 891 intakes for federal, private, and tribal irrigation.
WPLC is represented by North Dakota local counsel Chad Nodland, attorney Patricia Handlin, Natali Segovia and Summer Blaze Aubrey from Water Protector Legal Collective.
Born out of the #NoDAPL Movement at Standing Rock, the Water Protector Legal Collective is a 501(c)(3) Indigenous-led legal nonprofit that provides support and advocacy for Indigenous peoples and Original Nations, the Earth, and climate justice movements. Formerly based and headquartered in North Dakota, WPLC organized representation for and represented hundreds of Water Protectors arrested during protests against DAPL at Standing Rock to protect the Water, cultural and sacred sites, and treaty lands impacted by the pipeline construction between August 2016 and February 2017. WPLC continues to represent Water Protectors, actively defends against SLAPP suits, and advocates for corporate accountability in harmonization with obligations under state, federal, and international human rights law.
Your continued support of our work makes this fight possible. This is the first time a non-party to a SLAPP suit stands up to an oil company that has done everything to skirt its legal obligations for years while demonizing Greenpeace, other organizations, and Water Protectors in the process; we are here for it–but hope you will have our back. It takes resources to adequately defend a SLAPP and in this case, we are stepping into the fray because Water Protectors and the public have a right to know if the important, life-giving waters of Lake Oahe and the Missouri have been contaminated.
Thank you for standing with us.
Urpillay sonqollay,
From the heart,
Natali Segovia, Esq. (Quechua)
Executive Director and Senior Attorney
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