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Dakota Access to Seek Supreme Court Review of Pipeline Order (1)

April 29, 2021, 8:32 PMUpdated: April 29, 2021, 9:35 PM

Dakota Access pipeline lawyers are heading to the U.S. Supreme Court to fight a ruling that required additional environmental review for the embattled oil project and left it vulnerable to a potential shutdown.

Lawyers on Thursday asked a federal appeals court to freeze a mandate that would lock in its January ruling that the Energy Transfer LP pipeline was approved without proper study under the National Environmental Policy Act.

“A stay would preserve the status quo, retaining jurisdiction in this Court to consider a potential request for relief from vacatur while the Supreme Court considers the forthcoming petition,” Gibson, Dunn & Crutcher LLP lawyers representing the pipeline company told the U.S. Court of Appeals for the District of Columbia Circuit.

Once filed, the petition is expected to present the Supreme Court with a question about the scope of the National Environmental Policy Act. The D.C. Circuit said the Army Corps of Engineers fell short of NEPA when it opted for a more streamlined approach to environmental review despite expert disagreement about the potential impacts of an oil spill on neighboring Native American tribes.

“Because the Supreme Court could conclude that the panel’s reasoning on both issues conflicts with the Supreme Court’s own decisions and decisions of other circuits, there is a reasonable probability that the Court will grant certiorari and reverse this panel’s decision,” Dakota Access lawyers said in Thursday’s filing.

A lawyer for the Standing Rock Sioux Tribe, the lead opponent of the pipeline, accused the company of trying to avoid proper environmental review.

“The courts have agreed that the pipeline requires a full, careful environmental impact statement,” Earthjustice attorney Jan Hasselman said. “The pipeline’s increasingly desperate efforts to avoid this review speaks volumes.”

The D.C. Circuit’s decision has left Dakota Access vulnerable to a potential shutdown order from a federal district court, which is weighing the issue now. It’s unclear whether the pipeline lawyers’ effort to freeze the mandate will affect the lower court’s consideration.

The Biden administration has said it won’t force the pipeline to halt operations at this time, but it also won’t challenge the D.C. Circuit’s ruling that called for additional review. The Army Corps analysis is underway and is expected to be complete sometime next year.

Dakota Access’ petition could face long odds at the Supreme Court without the backing of the federal government, Southern Methodist University energy law professor James Coleman said.

“There’s so many NEPA cases, the Supreme Court doesn’t grant that many,” he said. “And with the government not doing it, I think the odds would definitely be strongly against you.”

Dakota Access first petitioned the full slate of D.C. Circuit judges to review the January decision. The court denied the request last week, with no dissents.

The case is Standing Rock Sioux Tribe v. Army Corps of Engineers, D.C. Cir., No. 20-05197, motion filed 4/29/21.

(Adds comment from Hasselman, Coleman in paragraphs 6-7, 10-11.)

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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