MONDAY, FEBRUARY 1, 2021
Last week, a federal appeals court upheld United States District Judge James Boasberg’s order for a full environmental impact review of the Dakota Access Pipeline. However, Boasberg declined to halt the pipeline’s construction while the review is completed.
In addition, Boasberg also revoked an easement granted last summer regarding the crossing of the Missouri River.
Dakota Access Pipeline
In 2016, Energy Transfer Partners—a partnership made up of several subsidiaries and owns Sunoco Logistics—broke ground on the construction of the $3.8 billion, 1,172-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.
In December, the project was stalled again after a decision from the 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.
BREAKING: An appeals court has sided with the Standing Rock Sioux Tribe in its fight against the Dakota Access Pipeline, upholding a judge's decision requiring a new review and revoking a key permit. https://t.co/mjdnKOrblb
— Amy R. Sisk (@amyrsisk) January 26, 2021
According to the Associated Press, the Corps concluded that no significant environmental issues plagued the pipeline project about 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 March, 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, Boasberg ordered the United States Army Corps of Engineers to perform a new, full environmental review on the project, specifically, 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.”
In his ruling, Boasberg noted that that the Corps had not previously performed an adequate job in studying the risks or the infrastructure’s leak detection system.
“The many commenters in this case pointed to serious gaps in crucial parts of the Corps' analysis—to name a few, that the pipeline's leak-detection system was unlikely to work, that it was not designed to catch slow spills, that the operator's serious history of incidents had not been taken into account, that that the worst-case scenario used by the Corps was potentially only a fraction of what a realistic figure would be—and the Corps was not able to fill any of [the gaps in the analysis],” Boasberg said in a statement.
The new environmental review is expected to take one to two years to complete and at the time, was unknown if the pipeline would be shut down while conducting the review. Both Energy Transfer Partners and the Corps declined to comment on the matter.
What’s Happening Now
According to reports, while the pipeline will still require an updated environmental review, a appellate court blocked the order to stop operating or for the pipeline to be emptied of oil during the review last summer.
In response to the ruling, environmental group EarthJustice claims that the pipeline shouldn’t be allowed to operate until the Corps complete its review and can decide whether to reissue a federal permit granting easement for the pipeline to cross beneath Lake Oahe.
“This pipeline is now operating illegally. It doesn’t have any permits,” said Jan Hasselman, the EarthJustice attorney representing Standing Rock and other tribes. “The appeals court put the ball squarely in the court of the Biden administration to take action. And I mean shutting the pipeline down until this environmental review is completed.”
The group is also looking to President Joe Biden, with leaders of the Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe, Oglala Sioux Tribe, and Yankton Sioux Tribe writing to him personally, as he has the discretion to shut the pipeline down. During his first day in office, Biden was already reported to shut down construction at the Keystone XL pipeline.
However, North Dakota Republican Sen. Kevin Cramer argues that the court was right in its ruling and that Biden shouldn’t involve himself in the matter.
“The Army Corps of Engineers should be allowed to proceed as they are without political interference from the Biden administration,” Cramer said. “This is not another opportunity to wage war on North Dakota’s energy producers.”
Regardling the revoked permit, without an easement, the project is now considered an "encroachment" on federal land. Boasberg has set a hearing date for Feb. 10 so that the Corps, Energy Transfer and tribes opposing the piepline can discuss the impact of the D.C. Circuit ruling.
Tagged categories: Government; Oil and Gas; Ongoing projects; Pipeline; Pipelines; Program/Project Management; Project Management; U.S. Army Corps of Engineers
