Attorney tells pipeline regulators they can take safety, environment into account

Iowa Utilities Board begins deliberating the proposed Bakken pipeline


DES MOINES — Iowa utility regulators are authorized to weigh safety risks and expand environmental protections for a proposed interstate crude oil pipeline, debunking the developer’s arguments that those issues are off limits when the Iowa Utilities Board decides whether to grant a hazardous liquid pipeline permit, a staff attorney said Monday.

Dakota Access LLC, a subsidiary of Texas-based Energy Transfer Partners, has argued the federal government holds exclusive jurisdiction in regulating safety, and federal restrictions prohibit the state board from requiring environmental standards above what is needed under federal law, board officials said.

But board general counsel David Lynch disagreed on both points during opening deliberations Monday.

“The Utilities Board would not be in a position to say after the pipeline is built, ‘You are not operating that in the right way; we are going to revoke your permit,’ ” Lynch said. “But you are in the position upfront to say you don’t think this pipeline is going to be safe and we are not going to approve it at all.”

Monday was the first of four days scheduled for deliberations on the permit request made in January 2015, as well as the authority to use eminent domain to acquire easements from reluctant property owners.

Staff attorneys laid out for the three-member board the arguments parties have made for and against key issues in the case, and discussed the scope of authority on those issues — including climate change, energy independence, the world petroleum market and economic benefits.

A key point of contention is whether Dakota Access had satisfied the environmental study requirements for the proposed 30-inch diameter underground pipeline originating in the Bakken and Three Forks region of North Dakota and ending in Illinois.

Iowa’s state archaeologist has testified the company has not, while Dakota Access said it has but through an organization not preferred by the state archaeologist.


The law “gives the board the authority to impose terms and conditions on the pipeline if it is supported by the evidence in the record,” Lynch said. “Informally I believe if the board is of the opinion based on the evidence in the record that further environmental studies are required, I think you can deny a permit on that basis.”

Wally Taylor of the Sierra Club said all but 74 miles of the 346 miles of pipeline through Iowa would be “unprotected unless the board does something.”

The board discussed how to define “public convenience and necessity,” which is the statutory basis for approving a pipeline. Should it be a dictionary definition or a legal interpretation?

Regulators learned they could require Dakota Access pay for greater liability insurance, and could consider whether the pipeline serves the public good beyond Iowa’s borders.

Many are watching to see if the board reaches a decision during the deliberations this week. But the board could push the decision off to a future, unscheduled meeting. The board has kept its options open.

“I would like an answer tomorrow, but I don’t think that will happen,” said Chad Carter, of the International Union of Operating Engineers Local 234 based in Des Moines. “My hope is to hear by the end of the month. I don’t see given how much the work the board has to do figuring this out this week.”

The heavy equipment union represents workers in 17 of the 18 Iowa counties the pipeline would cross through, he said.

Iowa is the last state to rule on the pipeline. Boards in North Dakota, Illinois and South Dakota have given a green light.

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