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Dakota Access Pipeline Needs More Federal Review, Court Says (3)

March 25, 2020, 4:37 PMUpdated: March 25, 2020, 10:38 PM

Federal officials must again study the impacts of the Dakota Access pipeline, after a federal court on Wednesday largely sided with American Indian tribes opposed to the project.

The U.S. District Court for the District of Columbia ruled that the Army Corps of Engineers’ latest analysis didn’t fully grapple with how the oil pipeline affects the Standing Rock Sioux Tribe and others near its route.

The decision, which may not be eligible for immediate appeal, is a remarkable victory for Standing Rock and other tribes that have opposed the pipeline for years.

Judge James E. Boasberg wrote that “too many questions remain unanswered” about the pipeline’s impacts.

“Unrebutted expert critiques regarding leak-detection systems, operator safety records, adverse conditions, and worst-case discharge mean that the easement approval remains ‘highly controversial’” under the National Environmental Policy Act, he wrote.

The agency must conduct a full-fledged environmental impact statement. It had previously done a less detailed environmental assessment and a court-ordered supplement.

“After years of commitment to defending our water and earth, we welcome this news of a significant legal win,” Standing Rock Sioux Tribal Chairman Mike Faith said in a statement.

Pipeline Can Still Operate, For Now

Dakota Access, backed by Energy Transfer Partners LP, went into service almost three years ago, moving crude from North Dakota shale fields to an oil hub in Illinois.

The ruling doesn’t immediately affect the pipeline’s operations; the court requested additional briefs from the government, pipeline backers, and the tribes on whether to stop the flow of oil while the Army Corps starts another round of analysis under the National Environmental Policy Act.

Earthjustice attorney Jan Hasselman, who represents Standing Rock, said in an interview that the tribe will push to shut down the pipeline.

Even if the court declines to do that, the new environmental impact statement could spur additional mitigation measures, consideration of alternative routes, or, under a different administration, denial of essential pipeline permits, he said.

A Dakota Access spokeswoman said she couldn’t comment “due to the ongoing nature of this litigation.” The Army Corps referred questions to the Justice Department, which doesn’t comment on pending litigation.

The court’s order isn’t a final judgment in the case, so it’s unclear whether the defendants can appeal it.

Craig Stevens, spokesman for the industry-aligned Growing America’s Infrastructure Now coalition, called the decision “stunning” and warned that it puts developers in a precarious situation.

“These companies that invest and support large scale infrastructure projects want certainty from the government; and those who built and now operate the pipeline followed every applicable local, state, and federal rule—but now a court is putting their work in potential peril,” he said in a statement.

House Natural Resources Committee Chairman Raúl M. Grijalva (D-Ariz) in a statement called for the pipeline to now be shut down and “restarted only if it can operate consistent with the legal rights of the people who are impacted.”

Long Legal Battle

The Standing Rock Sioux and Cheyenne River Sioux first filed suit in 2016, later joined by other tribes, and scored a partial win the following year when Boasberg ordered the Army Corps to conduct additional analysis. The agency again concluded that the pipeline doesn’t have significant impacts of the environment.

The tribes challenged the conclusions, arguing that the government ignored NEPA regulations that require agencies to consider the “highly controversial” nature of a project’s potential impacts when deciding whether to do an environmental assessment or a more in-depth environmental impact statement.

Dakota Access crosses a dammed section of the Missouri River just a half-mile from the Standing Rock Indian Reservation in North Dakota. Thousands of tribal members, advocates, and environmentalists camped out near the route for months in 2016 and 2017 to protest it.

The pipeline can move more than a half-million barrels of oil per day, and Energy Transfer is working to increase its capacity.

NEPA Legal Analysis

Wednesday’s decision is driven largely by recent precedent from the U.S. Court of Appeals for the District of Columbia Circuit.

That court in 2019 ruled that the Army Corps violated the National Environmental Policy Act by conducting an environmental assessment rather than a more detailed environmental impact statement for an electric transmission project across the James River in Virginia.

The D.C. Circuit said the agency violated NEPA rules that require agencies to weigh whether impacts are “highly controversial"—or, disputed by experts— when deciding whether to do an EIS. In the case of the electric project, other federal agencies disagreed with how the Army Corps conducted its analysis.

In the Dakota Access litigation, tribal experts and some federal agencies raised their own concerns about how the Army Corps studied oil spill risks and other potential impacts.

During a court hearing last week, government and industry lawyers tried to distinguish their case from the D.C. Circuit precedent, arguing that the Army Corps reasonably deferred to pipeline safety regulators when approving the project.

The judge rejected the argument and said federal law required the agency to take seriously complaints from other federal agencies, the public, and especially tribes, which are sovereign nations.

“The Court acknowledges that in projects of this scope, it is not difficult for an opponent to find fault with many conclusions made by an operator and relied on by the agency,” Boasberg wrote. “But here, there is considerably more than a few isolated comments raising insubstantial concerns.”

Within an hour of the district court’s decision, another federal judge in Louisiana upheld the Army Corps’ review of the Bayou Bridge pipeline, another Energy Transfer Partners project in the South.

The case is Standing Rock Sioux Tribe v. Army Corps of Engineers, D.D.C., No. 1:16-cv-01534, 3/25/20.

(Adds comment from Dakota Access.)

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

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com

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