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Dakota Access Pipeline Faces Renewed Legal Bid for Shutdown (1)

Sept. 8, 2020, 10:36 PMUpdated: Sept. 8, 2020, 11:51 PM

Opponents of the Dakota Access oil pipeline are renewing their calls for a federal court to shut the project down after a previous order was sidelined on appeal.

The Standing Rock Sioux, Cheyenne River Sioux, and other tribes asked the U.S. District Court for the District of Columbia to issue a new order halting the flow of oil through the embattled project, Earthjustice attorney Jan Hasselman told Bloomberg Law on Tuesday ahead of the groups’ filing.

Lawyers for Dakota Access and the Army Corps of Engineers voiced their opposition before the tribes had even made a formal request to the court. Government lawyers argued a new shutdown dispute would be “unnecessary and inappropriate at this time” as a related appeal and agency review play out.

“It would be premature to move forward with the possibility of injunctive relief while that process is underway,” Dakota Access lawyers said.

In court papers filed later Tuesday, the tribes argued that the district court should decide the issue quickly, without further briefing, because it already determined the pipeline’s approval violated the National Environmental Policy Act and is harming the tribes.

“Accordingly, no additional evidence or briefing is necessary for the Court to issue an injunction shutting down the pipeline pending compliance with NEPA,” lawyers for the tribes wrote.

Stalling Tactic?

Hasselman in an interview said the district court “has all the information it needs” to decide the issue, and called the government’s and pipeline company’s opposition a stalling tactic.

District Judge James E. Boasberg already issued a jaw-dropping shutdown order once, in a July decision that also scrapped a federal easement for Dakota Access after finding environmental review flaws.

But a panel of appellate judges froze the shutdown order a month later, saying Boasberg hadn’t applied the proper legal test for an injunction.

Now, the lower court can issue a new order that addresses the appellate court’s concerns, Hasselman said—though he and other tribal lawyers stressed in their court filing that they believe the original shutdown order was legally sound.

The Army Corps and pipeline backer Energy Transfer LP are appealing the district court’s rulings against the pipeline in the U.S. Court of Appeals for the District of Columbia Circuit. At the same time, the Army Corps is launching the court-ordered environmental review expected to take 13 months, and is deciding how to address the pipeline’s lapsed federal easement.

Dakota Access has been in service since 2017, delivering crude from North Dakota to Illinois. Along its route, it passes within a half-mile of the Standing Rock Indian Reservation in North Dakota.

The case is Standing Rock Sioux Tribe v. Army Corps of Engineers, D.D.C., No. 1:16-cv-01534, status report filed 9/8/20.

(Adds information about tribes' court filing in fifth, sixth, and tenth paragraphs.)

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

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Meghashyam Mali at mmali@bloombergindustry.com

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