Court Shuts Down Dakota Access Pipeline Pending Environmental Review
On July 6, 2020, a federal judge for the District of Columbia ordered that the Dakota Access Pipeline be emptied pending a court–ordered environmental review by the U.S. Army Corps of Engineers (USACE). This decision comes three years after the pipeline first began carrying oil in 2017.
The movement against the pipeline won an initial victory in 2016, when members of the Standing Rock Sioux Tribe sued in Federal District Court to stop construction and the Obama administration announced they would seek alternative routes. Four days after President Trump took office in 2017, he signed an executive memorandum directing the Corps “to review and approve in an expedited manner” the pipeline. The Court’s decision this week ordered a shutdown that may remain in place for several years. Ultimately, a new administration may oversee the final permitting decisions.
IN 2017, MEMBERS OF THE STANDING ROCK SIOUX AND THE CHEYENNE RIVER SIOUX TRIBES FILED SUIT IN THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNDER THE ADMINISTRATIVE PROCEDURE ACT (APA).
The suit claimed that USACE’s grant of an easement for construction and operation of the Dakota Access Pipeline (DAPL) to carry crude oil under Lake Oahe violated the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), and Mni Waconi Act. Lake Oahe is a reservoir lying behind a dam on the Missouri River, a federally regulated waterway bordering tribes’ reservations. On remand, USACE issued a finding of no significant environmental impact (FONSI) from the pipeline crossing under waterway, exempting USACE from preparing an environmental impact statement (EIS) under NEPA. In March 2020, the District Court remanded to the Corps to complete the EIS and requested a separate briefing on status of the easement and oil pending completion of the EIS. During the briefing, the tribes argued for vacatur of the permits granting the easement.
IN ITS MOST RECENT DECISION THIS MONDAY, THE COURT WROTE,
Lake Oahe is a large reservoir lying behind a dam on the Missouri River and stretching between North and South Dakota. Fearing severe environmental consequences, American Indian Tribes on nearby reservations have sought for several years to invalidate federal permits allowing the Dakota Access Pipeline to carry oil under the lake. Today they finally achieve that goal — at least for the time being.
THE COURT ADDRESSED THE PREVIOUS QUESTION OF WHETHER THE EASEMENT SHOULD BE VACATED, AND THE PIPELINE EMPTIED DURING THE REMAND PROCESS. JUDGE BOASBERG WROTE,
Although mindful of the disruption such a shutdown will cause, the Court now concludes that the answer is yes. Clear precedent favoring vacatur during such a remand coupled with the seriousness of the Corps’ deficiencies outweighs the negative effects of halting the oil flow for the thirteen months that the Corps believes the creation of an EIS will take.
In light of the environmental risks of operating without an environment study, the Court vacated the Corps’ decision to grant Dakota Access an easement under the Mineral Leasing Act and ordered that the Dakota Access Pipeline be shut down within 30 days. The following day, Judge Boasberg rejected a request by Dakota Access for an emergency order to delay the process of shutting down the pipeline while attorneys appeal.
Judge Boasberg’s ruling is the second victory in a period of two days for pipeline opponents. On Sunday, Duke Energy and Dominion Energy, announced they had canceled the Atlantic Coast Pipeline, which would have transported natural gas across the Appalachian Trail. The companies stated that lawsuits, mainly from environmentalists, had increased costs to as much as $8 billion from about $4.5 billion to $5 billion.