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Dakota Access Pipeline Seeks to Scrap Environmental Review Order

April 12, 2021, 8:07 PM

Dakota Access pipeline lawyers are urging a federal appeals court to reconsider a recent ruling against the divisive oil project.

Lawyers for the Energy Transfer LP line on Monday petitioned for rehearing before all active judges on the U.S. Court of Appeals for the District of Columbia Circuit, asking them to toss a three-judge panel’s January decision that said a critical easement violated the National Environmental Policy Act.

The Biden administration granted Dakota Access a reprieve April 9, announcing it wouldn’t, for now, require the pipeline to shut down during a court-ordered environmental review. The pipeline company’s rehearing request targets the underlying legal conclusions that prompted the review.

A federal district court last year said the Army Corps of Engineers violated NEPA by foregoing an environmental impact statement when it granted an easement for Dakota Access to cross part of the Missouri River. The agency should have done the in-depth analysis, rather than the narrower environmental assessment it performed, in light of expert disagreement over the impacts of a potential oil spill on nearby Indigenous tribes and resources, a judge ruled. The D.C. Circuit affirmed the ruling in January.

The panel’s decision “impermissibly transforms NEPA from a procedural statute into one requiring particular results, and is inconsistent with decisions from the Supreme Court and other circuits,” Gibson, Dunn & Crutcher LLP attorney Miguel A. Estrada, representing Dakota Access, told the appeals court Monday.

The D.C. Circuit rarely grants rehearing. Dakota Access is facing separate but related proceedings in district court, where the Standing Rock Sioux Tribe and other opponents have asked a federal judge to issue a shutdown order.

The case is Standing Rock Sioux Tribe v. Army Corps of Engineers, D.C. Cir., No. 20-5197, petition for rehearing filed 4/12/21.

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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