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Biden Administration Embraces Trump-era Support for Pipeline

May 3, 2021, 10:45 PM

The Biden administration is endorsing Trump-era arguments against shutting down the Dakota Access pipeline, a boost for company lawyers fighting to keep the project in service.

Justice Department lawyers on Monday reiterated an argument they made last year that the Standing Rock Sioux Tribe and other pipeline opponents “have not met the applicable standard” for securing a court order that would temporarily halt the oil project.

“It is possible that in the EIS process the Corps would find new information, but to date the Corps is not aware of information that would cause it to evaluate the injunction factors differently than in its previous filing,” they said in a brief to the U.S. District Court for the District of Columbia, referring to a court-ordered environmental impact statement that’s underway.

The Justice Department told the court last month that the Army Corps of Engineers wouldn’t use its enforcement authority, for now, to order Dakota Access to shut down for operating without a valid easement. The agency had also tacitly maintained the Trump-era arguments against a court-ordered shutdown but avoided addressing the matter in detail until now.

The district court requested the filing last week, seeking information on when the Army Corps of Engineers expects to finish the environmental review and an update on the government’s position on whether the court should halt the pipeline while that analysis is underway.

The broad, court-ordered environmental review is set to be complete in March 2022, the government said in its brief.

Dakota Access, meanwhile, is challenging the underlying court ruling that said its federal easement to cross a waterway in North Dakota violated the National Environmental Policy Act. Company lawyers announced last week that they’re preparing to file a petition for review at the U.S. Supreme Court.

The case is Standing Rock Sioux Tribe v. Army Corps of Engineers, D.D.C., No. 1:16-cv-01534, 5/3/21.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com

To contact the editor responsible for this story: Seth Stern at sstern@bloomberglaw.com

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