Tuesday, December 5, 2023 | Back issues
Courthouse News Service Courthouse News Service

With Dakota Access Pipeline Review Under Way, Judge Lets Oil Flow

Dealing a blow to protesters of the Dakota Access pipeline, a federal judge refused Wednesday to halt the flow of oil while federal regulators study the project’s environmental impact.

WASHINGTON (CN) - Dealing a blow to protesters of the Dakota Access pipeline, a federal judge refused Wednesday to halt the flow of oil while federal regulators study the project’s environmental impact.

“The dispute over the Dakota Access Pipeline has now taken nearly as many twists and turns as the 1,200-mile pipeline itself,” U.S. District Judge James Boasberg’s opinion begins.

Boasberg ordered the review in June, having found that the Army Corps of Engineers fell short of fulfilling the requirements of the National Environmental Protection Act,, in considering how an oil spill would impact environmental justice, fishing rights, and hunting rights, or how controversial the pipeline’s effects would be before it approved the project.

Boasberg remanded these issues to the Army Corps but had asked for further briefing on the question of whether to halt the oil flow during the review, or vacate the agency’s environmental assessment that determined a full environmental impact statement was unnecessary.

Though the protesters claimed that the errors required injunctive relief, Boasberg disagreed. "The court ultimately concludes that the three errors identified in the prior opinion are not fundamental or incurable flaws in the Corps’ original analysis; rather, the agency has a significant possibility of justifying its prior determinations on remand.”

Jan Hasselman, an attorney for the pipeline’s challengers at the Standing Rock Sioux Tribe, called the decision “a disappointing continuation of a historic pattern: other people get all the profits, and the Tribes get all the risk and harm.”

“The court already found that the Corps violated the law when it issued the permits without thoroughly considering the impact on the people of Standing Rock,” the Earthjustice attorney said. “The company should not be allowed to continue operating while the Corps studies that threat.”

Along with the Cheyenne Sioux tribe, Standing Rock has been fighting for more than a year in court to block the pipeline’s construction.

Their efforts failed, however, to stop the June 2016 launch of the pipeline, which transport 470,000 barrels of crude oil a day.

Among their unsuccessful challenges, the tribes accused developers of threatening sites of cultural and historical significance. They also warned that passage of the pipeline under Lake Oahe would desecrate sacred waters.

Where the tribes succeeded was with their claim that the Army Corps failed to properly assess the risk of oil spills under Lake Oahe or consider the effects of a spill on their treaty rights dealing with water, hunting and fishing, should one occur.

The tribes had wanted the Army Corps to conduct a full environmental impact statement before the government granted an easement permit for construction of the pipeline passage under Lake Oahe, and argued that a finding of disproportionate impact would require one.

But according to the 28-page ruling, the Corps’ agency guidance "expressly contemplates" using an environmental assessment to deal with such concerns.

Boasberg predicted that a full impact statement would offer little help to the challengers, saying it will likely substantiate issunce of the an environmental assessment.

He said the Army Corps is primed to conduct deeper analysis and need not begin anew. The judge did, however, caution that the agency must give “serious consideration” to the errors identified in this Court’s prior Opinion.”

“Compliance with NEPA cannot be reduced to a bureaucratic formality and the court expects the Corps not to treat remand as an exercise in filling out the proper paperwork post hoc,” the ruling states.

Categories / Environment

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.