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Dakota Access operator plans Supreme Court appeal
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Dakota Access operator plans Supreme Court appeal

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The Dakota Access Pipeline, pictured here during construction in 2016, faces ongoing legal challenges.

The operator of Dakota Access plans to take the longstanding fight over the oil pipeline to the U.S. Supreme Court, challenging an order requiring the line to undergo a new environmental review.

Dakota Access, which is controlled by Energy Transfer, filed a document in court Thursday indicating the company will challenge a recent decision from appellate judges affirming that the lengthy study must take place and that a permit for the line's Missouri River crossing was rightfully revoked by a lower court.

The company filed the document with the U.S. Court of Appeals for the D.C. Circuit, which ruled on the five-year-old lawsuit in January. Dakota Access did not immediately submit its appeal to the Supreme Court. Once that happens, justices could take months to indicate whether they will hear the case.

Dakota Access is asking the circuit court to "preserve the status quo" by holding off formally ending its involvement in the case, allowing it to retain jurisdiction if the line is ordered to shut down.

Jan Hasselman, a lawyer for the Standing Rock Sioux Tribe, said he did not believe that would affect a decision expected in the coming days or weeks from U.S. District Judge James Boasberg on whether the line must stop operating while its permit remains revoked. The Standing Rock Reservation lies just downstream from the pipeline's Missouri River crossing, and tribal members fear an oil leak would contaminate their water supply.

"The courts have ordered a full environmental review of the pipeline's risks and potential impacts on the Standing Rock Sioux Tribe, nothing more," Hasselman said. "The pipeline's increasingly desperate opposition to carrying out such a review tells us everything we need to know."

The lawsuit over Dakota Access has grown increasingly complex over the past year. The next big development is expected from the D.C. District Court, with all eyes on Boasberg who is poised to decide again whether to order the pipeline to stop operating. He did so last summer, but the appeals court ruled that he had not justified that decision at the time and kicked the matter back to him for further consideration.

Boasberg is not expected to rule before Monday. He's ordered the U.S. Army Corps of Engineers to update the court by then on when it expects the environmental review to finish and to state its position, if it has one, on whether the pipeline should be shut down. Without a permit for its river crossing near Standing Rock, the line is trespassing on federal property managed by the Corps.

A lawyer for the federal government indicated at a court hearing earlier this month that the agency would not make a decision about a shutdown at that time, as it continued to evaluate the matter amid the environmental study. That review, known as an Environmental Impact Statement, is expected to last until March 2022, U.S. Department of Justice attorney Ben Schifman told the judge.

Pressure from all sides of the pipeline fight has been mounting on the Biden administration since the president took office earlier this year. Past presidents have stepped into the dispute, with the Obama administration ordering the Corps to complete more environmental review and then the Trump administration reversing course by directing the agency to hurry up its permitting process.

Boasberg must also decide whether to let the state of North Dakota intervene in the case, as Attorney General Wayne Stenehjem requested last week. Stenehjem wrote that the Corps can no longer adequately represent North Dakota's interest in keeping the pipeline running, as a shutdown would cost the state tax revenue and lead to job losses in the Bakken oil fields.

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

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