United States District Court, District of Columbia
E. BOASBERG United States District Judge
the Standing Rock and Cheyenne River Sioux Tribes filed suit
to challenge the U.S. Army Corps of Engineers'
authorization of the construction of the Dakota Access
Pipeline in federally regulated waters, the Corps prepared an
administrative record for its July 2016 permitting decisions.
Defendant-Intervenor Dakota Access LLC has now filed a Motion
for a Protective Order in which it asks the Court to shield
portions of eleven documents in that record from public
disclosure based on its concern that terrorists or other
individuals looking to damage the pipeline could use such
information to inflict environmental injury. The Corps
opposes the Motion in part, and the Tribes oppose it in full.
As the Court concludes that Dakota Access has largely failed
to meet its burden to show good cause for such an order, it
will deny the Motion in the main, but grant it as to parts of
five of the eleven documents.
November 10, 2016, the Corps lodged the administrative record
for its July 25, 2016, decisions related to the permitting of
the Dakota Access Pipeline (DAPL). See ECF No. 55. It
initially withheld from its production 31 documents that
Dakota Access had identified as containing confidential
information warranting protection. See ECF No. 95
(Mot.) at 2 n.1; ECF No. 146 (Corps Opp.) at 2. Upon further
consideration, Dakota Access narrowed its concern to eleven
documents. See Mot. at 2 & n.1. It filed a
Motion for a Protective Order on February 1, 2017, asking the
Court to withhold portions of those documents from public
eleven documents at issue fall into three categories:
(1) a set of five documents entitled “Spill Model
Discussion, ” prepared for five different pipeline
locations (two in North Dakota and three in Illinois); (2) a
set of five corresponding geographic response plans; and (3)
a single prevention and response plan prepared by Dakota
Access's Horizontal Directional Drilling contractor.
ECF No. 161 (Reply) at 3. Within those documents, Dakota
Access asks the Court to protect “geographic
information that specifically details pipeline infrastructure
routes through private land” and “spill response
information that specifically details pipeline features,
capacity, flow rate, transportation, and related emergency
response information, safeguards, and plans in certain
sensitive locations along the [DAPL] route.” Mot. at 2.
Dakota Access believes that the information “pinpoints
locations where intentional damage to an oil pipeline would
generate the greatest harm, and . . . reveals in great detail
the manner in which the authorities would try to respond to
that damage.” Id. at 1. It therefore worries
that “terrorists or others with . . . malicious
intent” will use the information to damage the pipeline
in ways that maximize environmental harm. Id. at 3.
Corps opposes redacting or otherwise withholding from public
disclosure the five geographic-response plans and the HDD
prevention-and-response plan, but consents to a limited set
of redactions to the five spill-model discussions.
See Corps Opp. at 1-2, 4. The Tribes oppose any
withholding. See ECF No. 150-1 (Tribes Opp.) at 3.
To be clear, all disputed documents have been provided in
full to the Tribes' counsel so that they may be cited in
the pending summary-judgment briefing. Id. at 4.
Access offers three bases on which certain details in the
eleven documents should be protected from public disclosure:
(1) the information constitutes Sensitive Security
Information; (2) the information constitutes Critical
Infrastructure Information; and (3) the information should be
withheld pursuant to Federal Rule of Civil Procedure 26(c).
The Court addresses each in turn.
Sensitive Security Information
the terrorist attacks of September 11, 2001, Congress created
the Transportation Security Administration and entrusted it
with the authority “to shield information from
disclosure when it determined the release of that information
would be ‘detrimental to the security of
transportation.'” Lacson v. Dep't of
Homeland Sec., 726 F.3d 170, 172 (D.C. Cir. 2013)
(quoting Pub. L. No. 107-296, § 1601(b), 116 Stat. 2135,
2312 (2002) (codified as amended at 49 U.S.C. §
114(r))). TSA accordingly promulgated regulations regarding
the protection of Sensitive Security Information.
See 49 C.F.R. pt. 1520. Those regulations define SSI
as “information obtained or developed in the conduct of
security activities, including research and development, the
disclosure of which TSA has determined would . . . [b]e
detrimental to the safety of transportation.”
Id. § 1520.5(a). They also set forth categories
of information that can constitute SSI, including
“[a]ny security program or security contingency plan
issued, established, required, received, or approved by [the
Department of Transportation] or [the Department of Homeland
Security], ” and “[a]ny vulnerability assessment
directed, created, held, funded, or approved by the DOT, DHS,
or that will be provided to DOT or DHS in support of a
Federal security program.” Id. §
to Dakota Access, “Oil pipelines are a transportation
activity and subject to [SSI] protection, ” and the
information it asks the Court to redact implicates
“security programs, ” “security contingency
plans, ” “vulnerability assessments, ” or
“information detailing or relating to DAPL security
programs, security contingency plans, and/or vulnerability
assessments.” Mot. at 5-6. The Chief of TSA's SSI
Program, however, who has the authority to make SSI
determinations, see Lacson, 726 F.3d at 173 n.1,
reviewed the eleven documents Dakota Access seeks to shield
and determined that they “do not contain any
SSI.” ECF No. 146-2 (Letter from D. Blair, TSA, to E.
Zilioli, DOJ, Feb. 27, 2017). This Court lacks the power to
disturb that conclusion, as federal circuit courts have
exclusive jurisdiction to review TSA's SSI
determinations. See 49 U.S.C. § 46110(a), (c);
Elec. Privacy Info. Ctr. v. Dep't of Homeland
Sec., 928 F.Supp.2d 139, 146-47 (D.D.C. 2013). The Court
therefore must reject Dakota Access's argument that the
documents should be withheld on the ground that they contain