Dakota Access LLC is resisting an order by the Iowa Utilities Board, which wants it to release certain information regarding its shipping contracts for an oil pipeline that would cross the state.

The Texas-based company has said it cannot provide this information because it would violate confidentiality agreements with the shippers, as well as federal law.

The IUB issued the order Oct. 20 in response to data requests filed by the Sierra Club, one of the groups opposing the pipeline. The order granted some of Sierra Club’s requests while denying others.

Groups involved in the pipeline matter have been making information requests as part of the discovery process, preparing testimony for the trial-like hearings to begin today with public comments.

They file a motion to compel when they believe the other party is not being responsive to requests, and the IUB has granted some motions and denied others in this case.

The Sierra Club made a motion to compel discovery on Oct. 2, seeking information on the contracts Dakota Access has with shippers for use of the proposed pipeline.

Companies will arrange contracts to ship a certain volume of oil through the pipeline. These companies can be refiners, marketers or other purchasers of oil in North Dakota, who will then sell the oil at the end of the pipeline in Illinois.

Sierra Club wants the data because Dakota Access uses those contracts to show the need for a pipeline, according to the club.

“Sierra Club argues that because Dakota Access relies on those contracts to establish the need for the pipeline, it is important to know the terms of the contracts, including any commitments Dakota Access has made and any contingency provisions they may contain,” the IUB explained.

Dakota Access said the contracts contain confidential information, and can’t be disclosed under federal law.

The board said Dakota Access must provide evidence showing shippers would be harmed by the disclosure, and since that wasn’t provided, the company must provide the information.

The company and Sierra Club should enter into a confidentiality agreement to clear up those concerns, the board said.

“The board acknowledges the statement of Dakota Access that it has committed, in these contracts, to maintain the confidentiality of the agreements,” the board wrote, “but the fact is Dakota Access has relied upon these contracts, in part, to support its claim that the proposed pipeline will serve the public interest, and in doing so has released selected information about the contracts (the total transportation obligations, for example).

“The company cannot pick and choose which parts of the contracts it will release, then claim the rest is confidential; Sierra Club is entitled to see this evidence that Dakota Access relies upon.”

The company asked the IUB to reconsider this order. Dakota Access has claimed that the board is mistaken – Dakota Access did not release selected parts of the contract, it only released information about contracts in the aggregate.

“This is an important distinction recognized by the contracts themselves,” the company wrote.

Dakota Access has said it will ship approximately 450,000 barrels per day in the pipeline, but has not identified shippers, individual volumes or rates. To do so would harm those shippers by exposing their information to competitors, the company said.

Specifically, by knowing how much shipping companies have contracted to put in the pipeline, and what they’re paying for it, other companies selling oil to the shippers could pressure the shippers to get a better deal, said Damon Rahbar-Daniels, vice president of commercial operations for Transfer Partners, LP, of which Dakota Access is a subsidy, in a written statement.

Likewise, companies buying oil from the shipper at the endpoint would know the shipper must pay a contracted price to Dakota Access, even if the shipper can’t sell the oil for a price that fully recovers the cost of transportation, he added.

Rahbar-Daniels said releasing this information wouldn’t only harm these individual shippers, but would give Iowa a bad name.

“If the regulatory process cannot ensure the confidentiality of highly sensitive commercial information like that at issue in this case, it is likely to cast a chill over investment in infrastructure projects more broadly,” Rahbar-Daniels wrote. “Potential customers will be less willing to make financial commitments to support major infrastructure projects in the future if the value of their commitments might be degraded by the potential release, whether advertently or inadvertently, of their confidential commercial agreements.

“And without the commercial backing of customers who are willing to contractually commit to major capital projects, project developers are much less likely to be able to secure the necessary financing to pay for construction of such projects, reducing the opportunity for overall economic growth and job creation in the state.”

If the board doesn’t deny the data request outright, Dakota Access said only the board should examine the contracts in private. Sierra Club, as a private entity, shouldn’t be allowed access, the company said.

Sierra Club protested that after the IUB’s order was issued, the club and the company worked out a confidentiality agreement, finished on Nov. 2.

The club said this agreement would protect shippers from any disclosure of their contract details.

Instead of sending the contracts for review as the club expected, the company filed its motion to reconsider on Nov. 5, 11 days before the hearing was to begin.

Providing the information only to the board wouldn’t be sufficient, because the board doesn’t represent the interests of the Sierra Club, the club wrote.

“It is impossible for the Sierra Club to cross examine Dakota Access witnesses or to prepare arguments without knowing the terms and provisions of the shipping contracts,” it wrote.

“It is clear from the foregoing testimony that Dakota Access considers the terms of the shipping contracts important factors in the alleged need for the pipeline. It is important to know, for example, the time period covered by the contracts, any contingencies in the contracts that might depend on the decision of the board in this case, or any provisions of the contract that might reflect on the societal benefits of the contracts. There are probably other relevant provisions in the contracts, but it is impossible to know without seeing them.”

The club asked the board to order Dakota Access to provide the documents by today.

“Sierra Club submitted its data requests long ago; Dakota Access has resisted and delayed providing the information; the board had to compel disclosure; Sierra Club negotiated in good faith with Dakota Access to produce a confidentiality agreement with the understanding that Dakota Access would then produce the shipping contracts; and now, shortly before the start of the hearing in this case, Dakota Access is continuing its resistance and delay by challenging the board’s order compelling discovery,” Sierra Club wrote. “Unless the board denies the motion to reconsider immediately, Sierra Club will be severely prejudiced in preparing for the hearing.”

No further filings on the matter had been made as of 5 p.m. Wednesday.

In addition to a permit for the pipeline which will cross about 348 miles in Iowa, Dakota Access is seeking the power of eminent domain for properties on which it could not obtain a voluntary easement. There are about 415 parcels on which eminent domain has been requested.