Judge Orders Dakota Access Pipeline to Shut Down in One Month

A Lakota Sioux woman waits for her sisters in 2016, near the rope stretched across State Highway 1806 near the Standing Rock Camp. The rope was a few hundred yards from the barricade erected by law enforcement on the Blackwater Bridge where several demonstrations over the Dakota Access pipeline had taken place. (Courthouse News photo/Laura Lundquist)

WASHINGTON (CN) — The Dakota Access pipeline must shut down by August 5, a federal judge ruled Monday, handing the oil industry and Trump administration a resonant defeat after a long-fought battle with Native American tribes.

U.S. District Judge James E. Boasberg found the U.S. Army Corps of Engineers issued a permit for the pipeline in 2016 without drawing up an adequate environmental report on how crude oil running beneath Lake Oahe along the Missouri River would affect the environment.

“Fearing severe environmental consequences, American Indian Tribes on nearby reservations have sought for several years to invalidate federal permits allowing the Dakota Access Pipeline to carry oil under the lake,” Boasberg wrote. “Today they finally achieve that goal — at least for the time being.”

Nominated by President Barack Obama to the Washington court, Boasberg ordered Dakota Access LLC to halt the flow of oil, saying the deficiencies in the government’s environmental impact statement — a requirement of the National Environmental Policy Act — were too egregious to ignore.

Chairman Mike Faith of the Standing Rock Sioux Tribe called the decision historic. 

“This pipeline should have never been built here,” Faith said in a statement Monday. “We told them that from the beginning.”

The victory follows a push by President Donald Trump on his second day in office to expedite approval for the pipeline that stretches 1,172 miles underground. President Obama had initially denied permits to the oil company, ordering regulators to look closely at alternative routes and the impact on treaty rights. 

Dakota Access LLC did not respond Monday to a request for comment on the ruling. 

The company had argued that shutting down the pipeline would strand 34.5% of North Dakota crude oil, leading producers to shut down between 3,460 and 5,400 wells. 

The tribes balked at the claim as “wildly exaggerated.” As summarized in the 24-page opinion, “production in North Dakota has [already] plummeted” thanks to “a precipitous collapse in oil prices, demand, and production” caused in part by the Covid-19 pandemic.

Dakota Access later acknowledged that the effects of the pandemic are impossible to quantify given rapidly changing oil prices. 

Judge Boasberg made clear, however, that the economic impact factored into his ruling. 

“Losing jobs and revenue, particularly in a highly uncertain economic environment, is no small burden,” Boasberg wrote. “Ultimately, however, these effects do not tip the scales decisively in favor of remanding without vacatur.”

Craig Stevens, a spokesman for an organization that promotes strengthening the U.S. economy through infrastructure development, slammed Boasberg’s ruling.

“The GAIN Coalition is hopeful that common sense will prevail and this decision will be stayed or overturned,” said Stevens, using an acronym for the organization Grow America’s Infrastructure Now.

A former senior adviser to U.S. Energy Secretary Sam Bodman during the George W. Bush administration, Stevens said his group is “confident the Corps’ additional review will affirm its previous findings on DAPL.”

Jan Hasselman, an attorney at Earthjustice for the Standing Rock Sioux Tribe, meanwhile said the decision follows four years fighting for justice. 

“If the events of 2020 have taught us anything,” Hasselman said in a statement, “it’s that health and justice must be prioritized early on in any decision-making process if we want to avoid a crisis later on.”

Boasberg first ordered the government to undergo stricter environmental review in 2017, but declined to shut down the pipeline. This past March, he issued a similar directive for a new environmental impact statement, writing that another limited remand no longer fit the bill.

But five tribes led by the Standing Rock Sioux urged Boasberg last summer to stop the flow of oil.

“Although mindful of the disruption such a shutdown will cause, the court now concludes that the answer is yes,” Boasberg wrote this morning. “Clear precedent favoring vacatur during such a remand coupled with the seriousness of the Corps’ deficiencies outweighs the negative effects of halting the oil flow for the thirteen months that the Corps believes the creation of an EIS will take.”

The shutdown will hold until the government completes the full environmental review.

The Army Corps has said it expects to complete the regulatory analysis by mid-2021, lining up the possibility that a new presidential administration may undertake the decision of whether to reissue operating permits for the pipeline.

Boasberg noted in his opinion Monday that the new environmental impact statement will be subject to the full scope of judicial review applied to such reports.

Alluding to the travel slowdown brought on by the coronavirus pandemic, the judge took note of the impact that his order to drain the pipeline in 30 days will have on the oil industry in North Dakota and possibly neighboring states.

“The court does not reach its decision with blithe disregard for the lives it will affect,” Boasberg wrote. “It readily acknowledges that, even with the currently low demand for oil, shutting down the pipeline will cause significant disruption to DAPL, the North Dakota oil industry, and potentially other states.

“Yet, given the seriousness of the Corps’ NEPA error,” Boasberg continued, “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.”

The Army Corps of Engineers did not respond to a request for comment on the ruling.

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