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Illinois court revokes DAPL expansion decision; line can keep operating at higher capacity while under review

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The path of the Dakota Access Pipeline was still visible near its Missouri River crossing in the summer of 2020 across the rolling hills north of Cannon Ball in Morton County.

An Illinois court has revoked a decision by state regulators to allow the Dakota Access Pipeline to operate with an expanded capacity, though judges stopped short of restricting the amount of oil flowing from North Dakota through the line while officials review the matter.

The Appellate Court of Illinois issued its ruling Wednesday, directing the Illinois Commerce Commission to take into consideration the pipeline operator's history of safety and environmental violations in Pennsylvania. Sunoco, an affiliate of operator Energy Transfer, is developing a natural gas liquids pipeline system there and has committed numerous violations and faced fines from Pennsylvania regulators for construction-related spills and other problems.

"Sunoco's conduct as a pipeline operator in Pennsylvania is relevant" to public security "and ought to be taken into consideration," the ruling says.

The Illinois commission opted not to consider those issues in its original decision to allow Dakota Access to expand its capacity from 570,000 barrels per day to 1.1 million barrels per day. Environmental groups raised the matter during those deliberations, suggesting Illinois regulators look into whether the same problems that occurred in Pennsylvania could arise with Dakota Access. They brought it up again when they appealed the commission's decision in court.

A leader of one of the groups said in a statement Thursday that they are gratified the court voided the commission's "flawed approval" of the expansion, an issue they had fought since July 2019.

"Two and a half years later, we appreciate that key arguments of our appeal will be reconsidered," said Deni Mathews, chairperson of Save Our Illinois Land.

The other groups involved in the litigation include the Natural Resources Defense Council and the Sierra Club.

The appellate court also concluded that the Illinois commission misinterpreted "the public" to mean "the world" when it considered the public need for the pipeline's expansion. The judges said regulators should have interpreted the term to mean "the United States" at its broadest.

Illinois regulators will need to review those matters and make a new permitting decision, which could take months. The commission there is the equivalent of the North Dakota Public Service Commission, which approved the pipeline expansion in early 2020. The pipeline runs from North Dakota to Illinois, transporting Bakken oil from the western part of the state to market.

The court stopped short of granting all that environmental groups asked for, notably declining to limit the amount of oil flowing through the pipeline to its previous capacity of 570,000 barrels per day while the review takes place.

Energy Transfer announced its expansion plans in 2019, seeking to nearly double Dakota Access's capacity by building pump stations in several states to boost the line's horsepower. It secured necessary state and local approvals and revealed in August 2021 that it had completed the first phase of its expansion. The line has the capacity to transport as much as 750,000 barrels per day.

North Dakota Pipeline Authority Director Justin Kringstad keeps a close eye on oil transportation data and said he believes the line is currently carrying around 570,000 to 575,000 barrels per day. The pipeline expansion occurred amid the downturn brought on by the coronavirus pandemic, which sent North Dakota's oil production plummeting. The state's oil output has recovered somewhat to 1.1 million barrels per day, but it's still below pre-pandemic levels.

Energy Transfer did not immediately respond to a Tribune request for comment Thursday.

The pro-pipeline GAIN Coalition said in a statement that it was disappointed in the Illinois ruling.

"Once again, an activist court has attempted to impose its political will in a straightforward regulatory matter," spokesman Craig Stevens said. "When courts act to quash regulators’ mindful decisions, it undermines their authority and risks private investment as regulatory certitude is imperiled."

Meanwhile, a separate legal battle over the pipeline continues at the U.S. Supreme Court. Lower courts have vacated the federal permit for the pipeline's Missouri River crossing in North Dakota and ordered a more thorough environmental review of the line at the request of the Standing Rock Sioux Tribe, but Energy Transfer has appealed those decisions.

The Supreme Court justices are expected to decide in the coming weeks whether to hear the case.

The Standing Rock Reservation lies just downstream from the pipeline's river crossing, and tribal members fear an oil leak would contaminate their water supply. Energy Transfer has long maintained the line is safe.

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

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