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Court Lets Dakota Access Stay Flowing

Monday, August 10, 2020

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Last week, a federal appeals court reversed a judge’s order to shut down the Dakota Access pipeline pending a full environmental review.

Judge James E. Boasberg said Dakota Access had ordered last month that operations must shut down the pipeline and empty it of oil by Aug. 5. However, the U.S. District Court of Appeals for the District of Columbia Circuit sides with pipeline owner Energy Transfer, saying that the lower-court judge “did not make the findings necessary for injunctive relief.”

About the Project

In 2016, Energy Transfer Partners—a partnership made up of a number of subsidiaries that owns Sunoco Logistics— broke ground on the construction of a 1,168-mile underground pipeline. Intended to carry 570,000 barrels of crude oil per day from North Dakota to Patoka, Illinois, the project has seen many postponements, orders, reviews and criticism.

Not long after construction began, the project hit a temporary delay when Sioux leaders suggested part of the pipeline route crossed through ancient burial lands. Iowa officials halted work in late May, but the state’s archaeologist said that the underground boring would not pose a significant disruption, and construction was back on by late June.

Carl Wycoff, CC-SA 2.0, via Wikimedia Commons

Last week, a federal appeals court reversed a judge’s order to shut down the Dakota Access pipeline pending a full environmental review.

In December, the project was stalled again after a decision from the U.S. Army Corps of Engineers relayed that it would not allow an easement for construction of the 30-inch pipeline underneath the Missouri River at Lake Oahe.

However, by February 2017, the Corps announced that it would approve an easement. The new approval arrived two weeks after President Donald J. Trump issued a series of memoranda, one of which specifically asked the Corps to expedite a review of the easement ruling.

According to the Associated Press, the Corps concluded that no significant environmental issues plagued the pipeline project in regard to running it underneath the Missouri River.

Also included among the memos was an invitation for TransCanada to re-submit its plans for the Keystone XL pipeline, which was rejected in 2015 by the Obama administration. Another memo called for new pipelines being built in the U.S. to be made of American materials as much as possible.

According to Energy Transfer Partners, the pipeline was being constructed of “heavy-walled steel pipe that is nearly 50% thicker than required by law,” will be monitored remotely at all times, and will be regularly patrolled and inspected by air to ensure safety.

The same month the pipeline began operations in June 2017, U.S. District Judge James Boasberg ruled that the federal government did not adequately consider the pipeline’s impacts when it ruled earlier that year that the project could go forward. As a result, Boasberg said, the Corps would have to conduct a new environmental review—although, the pipeline could remain in service.

The judge’s ruling came as part of a suit filed by the Standing Rock Sioux and the Cheyenne River Sioux, who argued that the pipeline threatens the safety and quality of their drinking water. In revisiting the matter, the opinion of the Corps made earlier that year, was again validated.

Despite previous environmental concerns and protests, last month, North Dakota’s Public Service Commission issued a vote favoring the expansion of the pipeline, which will double its capacity to 1.1 million barrels of crude oil per day. However, the proposal still needs additional permits and could face various legal challenges.

In April, the same court ruled that the Army Corps must perform a new, full environmental review of the pipeline.

Boasberg wrote at the time that the pipeline’s “effects on the quality of the human environment are likely to be highly controversial” and that the Corps had not previously performed an adequate job in studying the risks or the infrastructure’s leak detection system.

Boasberg ordered the Corps to conduct a more detailed review, showing how an oil spill under the Missouri River might affect the Sioux Tribe’s fishing and hunting rights; whether the project might disproportionately affect tribes and other at-risk, low-income communities; and whether the pipeline’s effects on the environment would be “highly controversial.”

Shutdown Ruling

At the time of the environmental review ruling, it was unclear on whether or not the pipeline would have to be shut down—that was clarified last month as the decision halted the pipeline during the entirety of the review, which is expected to last until 2021.

While Boasberg acknowledged how disruptive a shutdown would be, he noted that the permit fell too far short of National Environmental Policy Act requirements to remain active.

“Yet, given the seriousness of the Corps’ NEPA error, the impossibility of a simple fix, the fact that Dakota Access did assume much of its economic risk knowingly, and the potential harm each day the pipeline operates, the Court is forced to conclude that the flow of oil must cease,” he wrote, referring to NEPA.

Energy Transfer noted that it planned to immediately ask for a freeze on the decision and intended to head to the U.S. Court of Appeals.

What Now

In its arguments against the closure, Energy Transfer said that the pipeline couldn’t be shut off by the deadline and that it would take months to empty the pipe of oil and perform steps to keep the line from corroding.

The cost estimates for such a process are estimated at $24 million, while $67.5 million needed for maintenance each year that the pipe is inoperable.

While the Appeals Court allows operations to continue, it declined to grant Energy Transfer’s motion to block the environmental review, saying that company had “failed to make a strong showing of likely success.”

Because of this, environmental groups are maintaining that the ruling was not a setback.

“As the environmental review process gets underway in the months ahead, we look forward to showing why the Dakota Access Pipeline is too dangerous to operate,” said Standing Rock Tribe Chairman Mike Faith.

Energy Transfer spokesperson Vicki Granado said the ruling “allows this important pipeline to continue to operate” and that the company looks forward to “continuing to work through the legal process to resolve all matters related to this pipeline.”

   

Tagged categories: Good Technical Practice; Government; Lawsuits; NA; North America; Oil and Gas; Pipeline; Pipelines

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