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Standing Rock seeks to keep Dakota Access shutdown order in place

Standing Rock seeks to keep Dakota Access shutdown order in place

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Three years after the Dakota Access Pipeline began operating, stretches of construction are still visible across the rolling hills just north of Cannon Ball on state Highway 1806 in Morton County.

The Standing Rock Sioux Tribe is asking a panel of federal judges to keep in place a lower court’s ruling ordering the Dakota Access Pipeline to shut down while the decision is appealed, saying the pipeline’s continued operation exposes the tribe to “catastrophic risks.”

Standing Rock, along with other Sioux tribes that are part of the lawsuit over the pipeline, filed a brief Monday in response to a plea by developer Energy Transfer and the U.S. Army Corps of Engineers to put the shutdown order on hold while they seek to overturn the ruling.

“The operation of the pipeline, on unceded lands yards upstream of the Standing Rock Sioux Reservation, compounds historical trauma and subjects the Tribes and their members to the stress of living under an existential catastrophe,” the tribes said in the brief.

The Standing Rock Sioux Reservation lies just south of the pipeline’s Missouri River crossing. Tribal members fear an oil spill at that site could devastate their water supply and affect their hunting, fishing and spiritual practices.

U.S. District Judge James Boasberg earlier this month revoked a key permit for the pipeline and ordered that the line be shut down and emptied of oil by Aug. 5. The pipeline would have to remain unused for the duration of a lengthy environmental review that he ordered this past spring. The study is expected to take at least 13 months.

Energy Transfer and the Corps, which permitted the pipeline’s water crossings, are appealing his recent rulings to the U.S. Court of Appeals for the District of Columbia Circuit, where a panel of three judges last week immediately put a temporary “administrative” hold on the shutdown order until they could hear arguments from both sides.

The tribes say the risks imposed by the pipeline “have never been properly examined as the law requires, and compounds a history of government-sponsored dispossession of Tribal lands and resources.”

“Allowing DAPL to continue operating despite NEPA violations would continue a generations-long pattern of balancing the impacts of resource exploitation on the backs of Native Americans,” the tribes said, referring to the National Environmental Policy Act, which requires that the federal government study the environmental impact of infrastructure projects.

A formal response from Energy Transfer and the Corps is expected later this week. The Corps has studied the pipeline's impact on the environment, but Boasberg ruled this past spring that the earlier study was not comprehensive enough.

Energy Transfer has said it anticipates taking a revenue hit of at least $2.8 million every day the line sits idle during a shutdown. It expects additional costs associated with emptying the pipeline of oil and filling it with a gas such as nitrogen to prevent it from corroding.

The Corps said in a filing last week that Boasberg’s order “shuts down a vital element of the Nation’s energy infrastructure” and does little to protect the tribes, “who are not likely to be harmed by continued operations,” given safety measures in place to prevent spills.

The Corps said that the judge “assumed” revoking the permit “meant that the pipeline must be shut down” and should have given the agency discrepancy to make the decision. The agency said that removing the permit would constitute an “encroachment” on federal property, at which point the Corps would undergo a process to determine what happens next. The outcome could range from requiring the removal of the pipe to authorizing its continued placement on Corps property along the river.

The Corps also cites concerns echoed by many North Dakota officials that shutting down Dakota Access would send ripple effects throughout the Bakken oil patch and result in a “sharp blow” to state revenues.

The tribes, as they have argued before, say that “claims of economic ‘devastation’ are gravely overstated.”

Dakota Access has operated for three years, pumping oil from North Dakota to Illinois. It has a capacity to carry 570,000 barrels per day of oil. That amount is equal to more than half the state’s current estimated daily oil output, and about 40% of the state’s oil production before the coronavirus pandemic hit and caused a downturn in the petroleum industry.

Reach Amy R. Sisk at 701-250-8252 or amy.sisk@bismarcktribune.com.

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