A federal judge ordered the U.S. Army Corps of Engineers to complete an extensive environmental review of the Dakota Access Pipeline in a ruling issued Wednesday, nearly four years after the Standing Rock Sioux Tribe sued the agency over the project.
U.S. District Judge James Boasberg had already ordered the Corps in 2017 to revisit several issues pertaining to the easement it granted the pipeline. He wrote in his opinion Wednesday that even after that review, “too many questions remain unanswered.”
“Unrebutted expert critiques regarding leak-detection systems, operator safety records, adverse conditions, and worst-case discharge mean that the easement approval remains ‘highly controversial’” under federal environmental law, he wrote.
He added that “the Court thus cannot find that the Corps has adequately discharged its duties” and said he will require the agency to complete a full Environmental Impact Statement. That is a much more stringent review than the Environmental Assessment the Corps completed before it issued its easement. Such a study can take up to two years to complete, according to the U.S. Department of Energy.
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It’s unknown whether the pipeline will be allowed to continue operating in the meantime. Boasberg plans to order the parties involved in the lawsuit to submit briefs arguing whether the easement should remain active while the agency conducts the new environmental review.
When Boasberg ordered additional study three years ago, he allowed the pipeline to continue operating.
Reaction to ruling
Standing Rock Chairman Mike Faith called Wednesday's ruling "a significant legal win."
“It’s humbling to see how actions we took four years ago to defend our ancestral homeland continue to inspire national conversations about how our choices ultimately affect this planet," he said in a statement. "Perhaps in the wake of this court ruling the federal government will begin to catch on, too, starting by actually listening to us when we voice our concerns.”
The Corps referred a request for comment to the U.S. Department of Justice, which declined to comment, as did pipeline developer Energy Transfer.
The company over the years has maintained that the pipeline is safe, a contention backed by the Corps. The pipeline has been operating since June 2017, moving North Dakota oil to a shipping point in Illinois.
If Dakota Access were ordered to stop operating, it would disrupt oil transportation in North Dakota at a time when the oil industry is already reeling from low prices as a result of falling demand for crude amid the coronavirus pandemic, as well as a price war between Russia and Saudi Arabia.
The pipeline carries as much as 570,000 barrels of oil out of the Bakken each day -- nearly 40% of the state's daily production. Energy Transfer is in the process of obtaining permission from various state regulators to nearly double that amount.
North Dakota Petroleum Council President Ron Ness called the prospect of the pipeline shutting down “a pretty frightening potential.”
“I think that would be a major overreaction for a pipeline that’s operating safely and of critical value to the U.S. economic security and certainly the state of North Dakota’s economy,” he said. “That would be a very significant action on behalf of the court for something that has been operating for so long.”
For Standing Rock, Wednesday’s ruling “validates everything that we’ve been saying for years,” attorney Jan Hasselman said.
“The risks of this pipeline and the impacts of a spill were never properly considered through the permitting process,” he said. “The court gave the Corps a chance for a do-over and, after three years, they still couldn’t get it right.”
Boasberg in 2017 ruled that the Corps “largely complied” with environmental law when permitting the $3.8-billion, four-state pipeline.
However, he also ordered more study because he said the agency didn’t adequately consider three areas: whether the impacts on the environment would be “highly controversial”; whether an oil spill under the Missouri River might affect the Standing Rock tribe’s fishing and hunting rights; or whether the project might disproportionately affect the tribal community -- a concept known as environmental justice. It aims to ensure development projects aren’t built in areas where minority populations might not have the resources to defend their rights.
The Corps completed the work in August 2018, leading to more legal wrangling when the tribes maintained the additional study was flawed.
Boasberg in his ruling Wednesday addressed only whether the project’s environmental effects were likely to be “highly controversial.” He concluded that there was enough “unresolved scientific controversy” to warrant broader environmental study. Because of that, he did not address the other two areas.
Effects are considered controversial if "substantial dispute exists as to the size, nature, or effect of the major federal action rather than to the existence of opposition," Boasberg wrote, citing case law. He went on to say that "significant public protests" surrounding Dakota Access weren't a factor under the legal definition.
The lawsuit, which has come to involve four Sioux tribes in the Dakotas as plaintiffs, has lingered since July 2016. The tribes fear a pipeline spill into the Missouri River -- which the line crosses beneath just to the north of the Standing Rock Reservation -- would contaminate water they rely on for drinking, fishing and religious practices.
Thousands of pipeline opponents from around the world who took up their cause flocked to southern North Dakota in 2016 and 2017 to protest the project. Some clashed with police, resulting in more than 760 arrests.
What’s expected next
Hasselman said he anticipates the Corps’ new environmental review will focus on matters such as alternatives to the pipeline route and spill mitigation options, such as better leak detection technology and spill response capabilities.
An Environmental Impact Statement “is a much more public process” that requires input from other parts of government, such as the Environmental Protection Agency, he said. The tribe, also, is eager to make its voice heard.
“We are where we are because the Army Corps failed to engage the tribe and its experts,” he said. “We hope that the Corps approaches this EIS with a new spirit of cooperation and transparency that has been absent so far.”
The Corps has disputed that it did not seek the input of tribes, at times stating in court documents that tribes were difficult to work with.
The Standing Rock tribe also will argue that while the study is underway, the pipeline’s federal easement should be vacated, Hasselman said. That would effectively shut down the line until the judge rules again.
Hasselman pointed to various issues Boasberg raised in his opinion, including that the Corps “failed entirely to respond” to a federal study “that indicated an 80% failure rate in the type of leak-detection system employed by DAPL.”
“Those are risks that are currently being borne by the tribe and other members of the public who care about clean water,” Hasselman said. “That’s not the way the law is supposed to work. You don’t study a risk while you’re imposing it.”
Energy Transfer, meanwhile, has been planning to increase the capacity of Dakota Access to carry up to 1.1 million barrels of oil daily. It secured approval from the North Dakota Public Service Commission for the expansion in February.
Standing Rock, which intervened in the expansion case before the PSC, said Wednesday that it would not challenge the commission's decision in court and would instead pursue the matter directly with the Corps.
Regulators in Iowa and Illinois have not yet OK’d the expansion plan, which involves adding new pump stations along the pipeline route.
The company says the additional capacity is needed as oil companies demand more space on pipelines, given that North Dakota’s oil production has risen to 1.4 million barrels per day since the line started operating. Much of the oil that’s moved through Dakota Access makes its way down to the Gulf Coast to refineries and export terminals via other pipelines.
Without adequate pipeline capacity, the oil industry has historically turned to trains to get crude to market. In 2013 at the height of the rail industry’s involvement in shipping Bakken crude, trains transported 75% of the oil produced in North Dakota, according to the North Dakota Pipeline Authority.
The latest figures available show that trains move 19% of North Dakota’s oil, primarily to refineries along the east and west coasts. Pipelines carry 68%, with trucks and local refineries accounting for the rest.
If the Bakken were to lose Dakota Access as a transportation option, “it would be a tremendous boost to the crude-by-rail industry in a hurry,” said Ness, with the petroleum council.
“That comes at more cost and more risk,” he said. “It just wouldn’t make any sense.”
Observers weigh in
Since the fight over Dakota Access began in 2016, various groups have closely tracked the project's developments, and they quickly reacted to Wednesday’s ruling.
The Lakota People’s Law Project, for one, has long argued for the pipeline to shut down, and the group reiterated that stance Wednesday.
“This remedy is critical for my family, because the backup plan for a spill could push the oil back into Porcupine Creek, which is my front yard,” organizer Phyllis Young said in a statement. “I cannot drink oil. My children cannot live with this backup plan.”
On the pro-pipeline side, a spokesman for the GAIN Coalition called Boasberg's ruling "a stunning decision that flies in the face of decades of widely accepted practice." The coalition includes businesses, trade associations and labor groups.
“The Dakota Access Pipeline is already the most studied, regulated, and litigated pipeline in the history of our country and has been safely operating for nearly three years," spokesman Craig Stevens said. "These companies that invest and support large scale infrastructure projects want certainty from the government; and those who built and now operate the pipeline followed every applicable local, state, and federal rule -- but now a court is putting their work in potential peril."
Reach Amy R. Sisk at 701-250-8252 or firstname.lastname@example.org.