The federal agency embroiled in a lawsuit over the Dakota Access Pipeline is evaluating whether to continue allowing the line to pump oil following a court order revoking a key permit, and it plans to begin a lengthy environmental review this week.
The U.S. Army Corps of Engineers indicated its plans in a court filing Monday. Because U.S. District Court Judge James Boasberg revoked the pipeline’s easement in a July ruling, the pipeline is now considered an “encroachment” on federal property managed by the Corps, the agency wrote in a status report.
While the Corps weighs its options, it’s allowing Energy Transfer to continue operating the pipeline under the terms of that easement. The easement allows the line to cross under the Missouri River just north of the Standing Rock Sioux Reservation.
The Corps’ general policy “is to require removal of encroachments,” but it can make exceptions, the agency said. The two “most plausible options” involve removing the pipeline or giving it permission to continue using the property through a method such as granting a new easement.
The Corps acknowledged that the latter option would be subject to the National Environmental Policy Act, which is at the heart of the lawsuit filed by the Standing Rock Sioux Tribe and other tribes over the pipeline. The agency’s procedures state that complying with that law might require an Environmental Impact Statement, which is the lengthy environmental review it plans to begin this week after Boasberg ordered it earlier this year.
“There’s something truly upside down about the situation we’re in,” said Jan Hasselman, an attorney representing Standing Rock.
Issuing a new easement after the first was found to be in violation of the law “doesn’t make any sense,” he said.
The Corps indicated it might make a decision within 60 days, or it could decline to act. It’s seeking input from other federal agencies, including the Pipeline and Hazardous Materials Safety Administration and the Department of Energy.
The tribes would challenge a decision that allows the pipeline to continue operating, Hasselman said. They could pursue the matter through the courts or through the Corps, again, if former Vice President Joe Biden wins the presidential election. The Democrat has not publicly indicated his stance on the pipeline, but his pick for vice president, California Sen. Kamala Harris, signed onto a legal brief earlier this year backing the tribes’ effort to shut down the line.
The Corps said Monday that it plans to finalize a notice of its intent to prepare an EIS, the environmental review, by the end of the week. The EIS process is expected to take at least 13 months.
In ordering the study, Boasberg concluded that “too many questions remain unanswered” after the Corps' effort to address lingering concerns raised by the tribes following a previous, shorter environmental analysis. Standing Rock tribal members are concerned about the risk the pipeline poses to its water supply should an oil leak occur at its Missouri River crossing.
While the Corps begins the EIS and considers its easement options, it’s also fighting both those steps before a higher court.
In separate court filings last week, both the Corps and Energy Transfer asked the U.S. Court of Appeals for the District of Columbia Circuit to reverse Boasberg’s rulings requiring an EIS and revoking the easement during the review process.
After “extensive oil spill modeling,” the Corps “found that the risk of an oil spill is low and that its effects would be limited” because the pipeline was built with many safety features and is buried 92 feet below the Missouri River. Its actions do not require the preparation of a more thorough EIS, the agency said.
The Corps also said its actions should not have been considered “highly controversial” simply because of “consistent and strenuous opposition” by the tribes.
“This was the error: the law requires the court to review the Corps’ reasoned analysis, not merely whether opposition exists,” the agency said.
The tribes are expected to file a response with the court in mid-September.
The case reached the appeals court this summer following Boasberg's July order revoking the easement. He also ordered Energy Transfer to shut down the line and empty it of oil within a month, but a panel of appeals judges rejected that part of the ruling, saying that the lower court "did not make the findings necessary for injunctive relief."
Meanwhile, the parties have been in communication after Boasberg in early August ordered them to discuss “mitigation measures that could lessen the likelihood and severity of any oil leak” at the Missouri River.
Energy Transfer, in a letter to the tribes, reiterated safety measures in place already and said it is willing to discuss other steps with the tribes if they have suggestions.
The tribes responded, saying that “the only way to ensure the safety of the pipeline is to shut it down pending a full environmental review.” They added that additional technical information is needed to have “any meaningful discussion” about further safety measures.
The tribes are requesting a number of documents containing that information, such as an environmental inspection report, a spill model for the line’s Missouri River crossing, and the company’s safety and spill response policies. The tribes have unsuccessfully requested some of that information in previous pipeline proceedings.
Reach Amy R. Sisk at 701-250-8252 or email@example.com.