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Environment & Energy Report

Trump Administration Joins Dakota Access Pipeline Appeal (1)

July 13, 2020, 7:13 PMUpdated: July 13, 2020, 11:04 PM

The Trump administration is joining Dakota Access in appealing a court order requiring the oil pipeline to shut down next month.

Lawyers for the Army Corps of Engineers gave notice Monday that they’re challenging the district court order at the U.S. Court of Appeals for the District of Columbia Circuit, where pipeline lawyers are already waging a legal fight.

The government followed up hours later with an emergency request for the D.C. Circuit to stay the lower court’s order, saying the judge misapplied the National Environmental Policy Act and legal precedent, and overstepped by ordering the shutdown instead of simply scrapping the contested permit and deferring to the Army Corps to take action.

The government’s brief accuses the district court of ignoring the economic consequences of halting pipeline operations in favor ensuring that the National Environmental Policy Act has “bite.”

“But NEPA is a procedural statute, not a substantive statute designed to have ‘bite’ in the same way as the Clean Air Act or the Clear Water Act, especially not as to an already completed project,” the Justice Department’s top environment lawyers told the D.C. Circuit. “None of the court’s reasons provide a proper legal foundation for this injunction.”

The administration’s involvement comes after the district court scrapped a key federal permit for Dakota Access after agreeing with Indigenous tribes that the Army Corps hadn’t complied with the National Environmental Policy Act.

Lawyers for pipeline backer Energy Transfer LP are already pushing the appeals court to freeze the lower court’s order, a request likely to be bolstered by the federal government’s participation in the appeal.

The D.C. Circuit could decide as soon as this week whether to issue a short-term freeze of the lower court’s order.

The case is Standing Rock Sioux Tribe v. Army Corps of Engineers, D.D.C., No. 20-5197, motion filed 7/13/20.

(Adds information on government brief in paragraphs 3-5, updates case citation.)

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

To contact the editor responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com

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