Bloomberg Law
April 30, 2020, 2:00 PM

Dakota Access Should Keep Permit Despite Legal Flaws, Feds Say

Ellen M. Gilmer
Ellen M. Gilmer

Federal officials are likely to re-approve the Dakota Access oil pipeline after a court-ordered environmental review, so there’s no reason to halt operations in the meantime, the Trump administration said Wednesday.

In a legal brief, the Army Corps of Engineers urged the U.S. District Court for the District of Columbia to keep the project’s permits in effect while the agency corrects a “procedural error.”

“Given the amount of analysis that has occurred thus far and the specific easement conditions imposed, it is highly likely that the Corps will ultimately be able to substantiate its existing property management decision after correcting the procedural error identified by the Court,” the agency said.

The plea comes after the district court in March ruled that the Army Corps’ latest analysis for Dakota Access fell short of the National Environmental Policy Act.

The landmark ruling said the agency didn’t adequately grapple with expert disagreement over the risk of an oil spill in waters that serve the Standing Rock Sioux and other tribes. The Army Corps said it is aiming to finish a more detailed review of the pipeline’s impacts by the middle of next year.

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

‘Long-Lasting Consequences’

Dakota Access made its own case to the court Wednesday, arguing that scrapping the key pipeline permit in the case would cause “severe, immediate, and long-lasting consequences for many parties.”

Among those affected parties, the brief argues, are the pipeline company; North Dakota oil and gas companies; downstream customers; and state, local, and tribal governments that receive “several billion dollars” annually from oil and gas taxes and royalty revenue.

Invalidating the pipeline’s easement across the federally managed Lake Oahe in North Dakota would mean the project was encroaching on federal land, requiring the Army Corps to take “corrective measures,” including removal, Army Corps lawyers said.

“Disruptions from removal could include, among other things, creating the ‘extreme waste’ of dismantling and rebuilding the Pipeline,” the agency said.

Legal precedent allows, but doesn’t require, judges to consider disruptive effects and other factors when deciding whether to nix a permit issued in violation of federal law.

Judge James E. Boasberg, who is handling the case, previously allowed Dakota Access to keep its permits despite other violations of the National Environmental Policy Act.

Tribes opposed to the pipeline have until May 20 to file their own briefs. The district court is expected to rule by early summer on whether to nix the pipeline’s permits.

The case is Standing Rock Sioux Tribe v. Army Corps of Engineers, D.D.C., No. 1:16-cv-01534, briefs filed 4/29/20.

To contact the reporter on this story: Ellen M. Gilmer in Washington at

To contact the editors responsible for this story: Gregory Henderson at; Anna Yukhananov at