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Dakota Access Shutdown to Cause Harm, Government Lawyers Warn

Nov. 20, 2020, 10:36 PM

Government lawyers are still trying to ensure the Dakota Access pipeline isn’t forced to shut down, telling a federal court Friday that such a move would cause “near certain economic disruption.”

The new Army Corps of Engineers brief to the U.S. District Court for the District of Columbia Circuit comes in response to the latest effort by the Standing Rock Sioux, Cheyenne River Sioux, and other tribes to halt operations on the oil project while the Army Corps conducts a new environmental analysis. The district court in July scrapped a key permit for the pipeline and ordered a new, in-depth analysis.

The court must weigh the “low risk” of an oil spill against the “near certain economic disruption” that would result from halting pipeline operations, the Army Corps argued Friday.

“The scales are not close to evenly balanced. The Tribes’ harms are speculative and abstract, whereas shutting down a Pipeline that has been operating safely for years is certain to cause economic harm and shift oil transport to more risky methods,” the Army Corps’ brief said. Dakota Access lawyers are expected to make their own arguments in a separate filing Friday.

Legal Pingpong

Friday’s briefs are the latest development in high-stakes legal pingpong for Dakota Access, which has been moving oil from North Dakota to Illinois for three years while facing opposition from nearby tribes and environmentalists.

The district court’s July ruling called for the pipeline to shut down within weeks, but an appellate court later tossed that portion of the order. The tribes followed up last month with a new shutdown bid in district court. The tribes will file final reply briefs by Dec. 18, and the court is expected to decide the issue late this year or early next year.

Dakota Access is also facing potential threats from the incoming Biden administration. Advocates have called on the president-elect to halt the Energy Transfer LP pipeline’s continued operation by pursuing an enforcement action against the company for its encroachment on federal land—thanks to the district court’s invalidation of a federal easement.

A separate appeal is pending in the U.S. Court of Appeals for the District of Columbia Circuit, where Dakota Access and government lawyers are disputing the district court’s conclusion that the project approval fell short of the National Environmental Policy Act.

The case is Standing Rock Sioux Tribe v. Army Corps of Engineers, D.D.C., No. 1:16-cv-1534, briefs filed 11/20/20.

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

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Chuck McCutcheon at cmccutcheon@bloombergindustry.com

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