Developers of the Dakota Access Pipeline say they are “fully committed” to completing the project without rerouting the pipeline and filed a motion in federal court Monday seeking to expedite a federal judge’s decision.
Dakota Access LLC, a subsidiary of Energy Transfer Partners, requested Monday to make oral arguments at the court’s earliest convenience in its cross claim against the U.S. Army Corps of Engineers.
The company suggests Friday as a possible hearing date.
In a motion for summary judgment, Dakota Access wants a U.S. District Court judge to declare that the corps already authorized construction of the Lake Oahe crossing north of the Standing Rock Sioux Reservation.
Attorneys for Dakota Access argue the corps approved the crossing with its July 25, 2016, final environmental assessment but is “bowing to political pressure and the lawless acts of numerous protesters.”
The paperwork comes in response to the Department of the Army announcing Sunday that it would not grant an easement for the crossing without an Environmental Impact Statement and additional analysis of alternative routes.
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The companies called the decision from the Army a purely political action, pointing out that two federal courts have already sided with the corps review process.
“The Army corps confirmed this again today when it stated its ‘policy decision’ does ‘not alter the Army’s position that the corps’ prior reviews and actions have comported with legal requirements,’” the statement read.
The companies added they are “fully committed to ensuring that this vital project is brought to completion and fully expect to complete construction of the pipeline without any additional rerouting in and around Lake Oahe.”
The Army ordered additional review of alternative routes, including more detailed information on a route Dakota Access considered early in its planning that would have crossed the Missouri River about 10 miles north of Bismarck.
But previously, in the environmental assessment, the corps concluded the Bismarck route was not a “viable alternative” for several reasons, including its proximity to wellhead source water protection areas that are avoided to protect municipal water supply wells.
The Bismarck route also would have been 11 miles longer, required crossing more waterbodies and wetlands and would have crossed an area considered by federal pipeline regulators as a “high consequence area,” which is an area determined to have the most significant adverse consequences in the event of a pipeline spill, the corps concluded.
Companies have testified to the North Dakota Public Service Commission that a full Environmental Impact Statement can take up to a couple of years to complete, Chairwoman Julie Fedorchak said Monday.
“That EIS is a pretty in-depth process and is not short,” she said.
If the Dakota Access Pipeline were to be rerouted, the new portion of the route would have to go through a full hearing and review process with the PSC.
The agency would need at least four to six months to conduct that review, which would come after the company acquired new easements, conducted cultural resource and environmental assessments and additional requirements, Fedorchak said.
“We’d review all of that documentation as if it’s a new proposal for that portion of the route,” she said.
In court records, Dakota Access estimated delays of the pipeline will cost the company $2.7 million in lost revenue every day after Jan. 1.
Any significant delays of the project could prompt some existing landowner easements to be renegotiated. Attorney Derrick Braaten, who represented about 10 percent of the landowners along the North Dakota portion of the route, said easements for his clients will be released if the pipeline is not used for two consecutive years.
Jan Hasselman, attorney for the environmental law firm Earthjustice that represents the Standing Rock Sioux Tribe, said the consequences to the company are their own fault for building the $3.8 billion pipeline on either side of the Missouri River without an easement to go under it.
“Whatever consequences arise from this decision are on them,” Hasselman said. “They took a reckless gamble and it didn’t pay off.”
Ron Ness, president of the North Dakota Petroleum Council, said he thinks companies that planned to ship oil on Dakota Access will remain committed to the project despite the delay. The 1,172-mile pipeline will transport oil to Patoka, Ill., en route to refineries in the Gulf Coast.
“I don’t think it’s going to change any long-term commitments of any companies,” Ness said. “A few more months or weeks or whatever it may be is certainly detrimental and costly, but probably not unanticipated.”
In the meantime, more Bakken crude will continue being shipped by rail or truck, Ness said, noting Monday’s winter weather in North Dakota made those methods riskier than shipping by pipeline.
“If this pipeline was up and flowing today, that oil would be moving safely and consistently to market without any interruption,” Ness said.