Judge's Order Poses Uncertain Future For Pipeline | Prairie Public Broadcasting

Judge's Order Poses Uncertain Future For Pipeline

Jun 15, 2017

A segment of the Dakota Access Pipeline rests above-ground in Morton County last fall.
Credit Amy Sisk / Inside Energy

After a year of protests and controversy, oil began flowing through the 1,200-mile Dakota Access pipeline earlier this month. But the pipeline’s ultimate fate is now uncertain after a federal judge issued a ruling on Wednesday that challenges parts of the environmental review completed before the pipeline was permitted.

The pipeline can continue operating -- for now. But it’s possible the D.C. District Court judge could soon shut it down. Lawyers must submit new arguments on whether the pipeline should continue transporting oil while a federal agency reconsiders parts of its environmental review.

The Standing Rock Sioux Tribe has been challenging the pipeline in court since last summer. Two earlier challenges -- one claiming that grading land for the pipeline threatened sacred sites, and another claiming the pipeline would desecrate sacred waters -- were both dismissed by the court. This is the first significant legal victory for Standing Rock and other Sioux tribes that have filed suit over the project.

Judge James Boasberg’s ruling said the Army Corps of Engineers “did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial.”

He found that the Corps had “substantially complied” with the National Environmental Policy Act in many areas. But he ordered the Corps to “reconsider those sections” of its environmental analysis the court found lacking.

The Obama Administration in December refused to issue a permit to allow pipeline company Energy Transfer Partners to build the pipeline under the Missouri River, a half-mile north of the Standing Rock reservation. The Administration ordered the Corps to supplement an earlier Environmental Assessment with a more in-depth Environmental Impact Statement on the pipeline.  Five days after his inauguration, President Trump reversed that decision and construction on the pipeline soon resumed. The pipeline was completed in May and oil began flowing June 1.

The Standing Rock tribe called Boasberg’s decision a victory. Chairman Dave Archambault II praised the Obama Administration for “painstakingly” considering the impacts of the pipeline.

“President Trump hastily dismissed these careful environmental considerations in favor of political and personal interests,” he said in a statement. “We applaud the courts for protecting our laws and regulations from undue political influence, and will ask the Court to shut down pipeline operations immediately.”

Boasberg found that the Trump reversal was well within the scope of the law.  But he agreed with the tribe that the Corps did not adequately evaluate the impact of an oil spill on the tribe’s hunting and fishing rights.

He also criticized the Corps’ assessment of the environmental justice issues in its original environmental assessment.  In that assessment, the Corps only considered impacts within a half-mile of the pipeline.  The Standing Rock reservation lies just outside that boundary.

“The court is hard pressed to conclude that the Corps’ selection of a 0.5-mile buffer was reasonable,” Boasberg wrote.

He said the Corps’ conclusion that Standing Rock would not be disproportionately harmed by a spill was “bare-bones” and the Corps needed to offer more.

It’s not just the tribe welcoming Boasberg’s decision. Supporters of the pipeline also praised it for rejecting much of the tribes’ arguments against the pipeline.

Energy Transfer Partners issued a statement on Thursday noting that the judge found the Corps has substantially complied with the law in its environmental review. The company said the court pointed out concerns with two discrete issues and, “Dakota Access believes the record supports the fact that the Corps properly evaluated both issues, and that the record will enable the Corps to substantiate and reaffirm its prior determinations.”

Likewise, the GAIN coalition, a pro-infrastructure group,  hailed the ruling for affirming much of the Corps’ review.

“The Dakota Access Pipeline remains one of the safest – if not the safest – pipeline ever constructed,” spokesperson Craig Stevens said in a statement.

Shutting down the pipeline while this further environmental review is completed would be the “standard remedy” for this kind of violation, Boasberg wrote.  But, he said, “such a move, of course, would carry serious consequences that a court should not lightly impose.”

A hearing is scheduled for next week to hear arguments from both sides.

The dispute over the Dakota Access Pipeline became a huge rallying point last summer and fall as environmental activists joined with Native Americans in protesting the construction.  Thousands gathered in a camp near the Standing Rock Sioux reservation in an attempt to stop construction.