January 24, 2021
Over a year ago, Save Our Illinois Land intervened in the request of Dakota Access and Energy Transfer Crude Oil Company (DA-ETCO) to increase throughput on their pipelines from 570,000 barrels per day (bpd) to 1,100,000 bpd. SOIL’s intervention was particularly important since Illinois is the only state through which both pipelines pass and whose laws allow intervenors to oppose the project.
SOIL offered strong expert witness testimony and extensive evidence demonstrating the risk, lack of need for the project, and impact that the proposal would have on climate change. Nevertheless, on October 14, 2020, the ICC failed to acknowledge climate change and entered an Order approving the project. Contrary to statutory requirements and caselaw, the ICC did not explain its brief conclusions, erroneously determined that it could not consider risk, and erroneously concluded that it is required to consider global demand for oil.
Significant time, labor, and funds (which it has raised primarily from private individuals and foundations) have been expended to obtain this result; however, we believe the effort has been worth it. To the best of our knowledge, SOIL the first intervenor in a state regulatory proceeding to compel a pipeline company to disclose its shipping contracts.
We have also learned, for example, that DA/ETCO cannot detect leaks up to 237 barrels/hour at the current throughput and 458 barrels/hour at the proposed increased throughput, that increasing the pipeline capacity increases the risk of surge overpressure and rupture, and that most of the additional oil is destined for export.
As a precondition to appealing the ICC’s poorly justified Order, we filed an application for rehearing with the ICC. As expected, the ICC denied the application.
SOIL believes that appealing the ICC’s decision to state appellate court is necessary to:
- Overturn the ICC Order permitting DA-ETCO to nearly double the volume of oil they transport
- Overturn the bad precedent established by the Order that will hamper future efforts to oppose Illinois pipeline projects
- Establish consideration of climate impact as part of the ICC’s decision-making process
- Disrupt business as usual decision-making at the ICC and potentially have a ripple effect on other agencies.
SOIL, along with allies Sierra Club and Natural Resources Defense Council and landowner W. Klingele, have appealed the Illinois Commerce Commission’s decision to approve nearly doubling the flow of oil through the Dakota Access and ETCO pipelines in Illinois. Lawyers for SOIL et al have submitted their brief to the Fourth District Court in Springfield. Lawyers for the respondents (Dakota Access, Energy Transfer Crude Oil Pipeline and others) have been granted an extension and must file their Reply Brief by May 25.
SOIL fought the expansion of the Dakota Access Pipeline (DAPL) for over a year (June 2019 – October 2020). Unfortunately, the Illinois Commerce Commission (ICC) approved the project. We did, however, succeed in delaying the decision for over a year and forcing pipeline owners to reveal Transportation Service Agreements for the first time. We also argued against the project’s impact on climate change and examined safety risks. We learned a lot about the legal process involved, and the degree to which their procedures and decisions are strongly biased in favor of approving polluters’ proposals.
We have appealed the decision to the Fourth District Appellate Court of Illinois. Our appeal addresses seven failures by the ICC in handling this case. Among the most significant is the Order’s failure to include the factual findings and reasons for each of its conclusions, as required by statute and caselaw. It also contained some erroneous legal interpretations that will make similar interventions in the future much more difficult to win. We have been able to proceed with this appeal because of the legal and financial support of Sierra Club and Natural Resources Defense Council (NRDC). All briefs and replies have now been submitted. We await the decision of the appellate court judges, which may take until late 2021.