Judge Lets Dakota Access Pipeline Keep Operating Amid Environmental Review

Oil will continue flowing through the controversial pipeline despite it lacking a key environmental permit, a blow to indigenous and environmental activists who have been fighting against the pipeline for years.

Heavy equipment is seen at a site where sections of the Dakota Access pipeline were being buried near the town of St. Anthony in Morton County, N.D., in 2016. (Tom Stromme/The Bismarck Tribune via AP, File)

WASHINGTON (CN) — A federal judge ruled Friday to keep the Dakota Access pipeline running while federal regulators conduct an environmental review, a long-anticipated decision denying the Standing Rock Sioux Tribe’s request to temporarily shut it down. 

Standing Rock, along with other tribes, claim that the 1,172-mile pipeline is operating illegally, as it currently lacks a federal permit to cross underneath Lake Oahe — a reservoir on the Missouri River that is the tribe’s main water source. 

“The court acknowledges the tribes’ plight, as well as their understandable frustration with a political process in which they all too often seem to come up just short,” U.S. District Judge James Boasberg, a Barack Obama appointee, wrote in his 31-page opinion. 

But, Standing Rock didn’t meet the high bar for shutting the pipeline down, the judge found, which requires them to show irreparable harm based on the threat of an oil spill at Lake Oahe. 

“Judges may travel only as far as the law takes them and no further,” Boasberg continued.

Boasberg ordered a shutdown of the pipeline almost a year ago, after finding that the Army Corps of Engineers issued a permit without performing an adequate environmental study on the impact of the crude oil running beneath Lake Oahe, and revoked the permit. The D.C. Circuit reversed the decision to shut down the pipeline, and then later ordered the Corps to perform a more robust environmental analysis to determine whether to reissue the permit. 

The Army Corps of Engineers was given the opportunity to make the decision whether to shut down the pipeline during the environmental review, but in April the Corps said it still hadn’t decided and pushed the decision back to Boasberg — prolonging the years-long saga even further.

“Its chosen course has instead been — and continues to be — one of inaction,” Boasberg wrote of the Corps. “Such indecision, it is important to note, does not stem from a lack of time. Nor from a lack of attention.”

The Corps had more than 10 months since the invalidation of the permit to make a decision on whether to tolerate the pipeline’s operation underneath a waterway that it lacks a key federal permit to traverse.

“Plaintiffs, no doubt, will wish that the court’s opinion today had come out differently,” Boasberg said. “Simply by ruling, however, the court has at least given them something the Corps has not: a decision.”

The decision comes as a big loss for environmental groups and indigenous tribes, who have been fighting the pipeline tooth and nail for five years. 

“We believe the Dakota Access pipeline is too dangerous to operate and should be shuttered while environmental and safety implications are studied — but despite our best efforts, today’s injunction was not granted,” Earthjustice attorney Jan Hasselman said in a statement. He has represented Standing Rock in its legal challenge against the pipeline for about five years. 

“The unacceptable risk of an oil spill, impacts to tribal sovereignty and harm to drinking water supply must all be examined thoroughly in the months ahead as the U.S. Army Corps conducts its review of this pipeline,” Hasselman continued.

In his opinion, Boasberg said that the probability of a large oil spill is relatively low, and even if a large leak did occur, the oil would have to rise more than 90 feet through sediments and clay before reading the lakebed. 

“No matter the stakes and no matter the cause, courts may not grant the ‘extraordinary remedy’ of an injunction ‘based only on a possibility of irreparable harm,’” the judge wrote.

Energy Transfer LP, the pipeline’s operator, did not immediately respond to a request for comment. 

The Corps anticipates it will finish the environmental review by March 2022. 

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