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Dakota Access Pipeline Loses Rehearing Bid at Appeals Court (1)

April 23, 2021, 1:53 PM; Updated: April 23, 2021, 5:43 PM

A federal appeals court won’t reconsider a recent ruling against the Dakota Access pipeline, a move likely to push the developer to the U.S. Supreme Court.

The U.S. Court of Appeals for the District of Columbia Circuit on Friday rejected Dakota Access’ request for rehearing before all the court’s active judges. The company wanted the appellate court to review its January decision upholding a lower court’s determination that the Energy Transfer LP oil pipeline’s federal easement violated the National Environmental Policy Act.

The court issued its rehearing denial in a customary short order without explanation. Judges Cornelia Pillard and Gregory Katsas didn’t participate in consideration. No judges dissented.

Dakota Access now is expected to push its case to the Supreme Court, though it will have to do so without the backing of the federal government, which didn’t challenge the D.C. Circuit decision.

Energy Transfer declined to comment on Friday’s decision, citing the pending nature of the litigation.

Separately a federal district court is weighing a request from the Standing Rock Sioux Tribe and other opponents to shut down the pipeline in light of its invalid easement. The Biden administration announced earlier this month that it was declining to take enforcement action against Dakota Access at this time.

It’s unclear whether a potential Supreme Court petition would preclude the district court from issuing a decision on the shutdown request.

The case is Standing Rock Sioux Tribe v. Army Corps of Engineers, D.C. Cir., No. 20-5197, rehearing denied 4/23/21.

(Adds Energy Transfer response in fifth paragraph. )

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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