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Judge allows Dakota Access Pipeline to keep operating
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Judge allows Dakota Access Pipeline to keep operating

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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 Dakota Access Pipeline can keep operating while a federal agency conducts an environmental review that will determine whether it reissues a permit for the line's Missouri River crossing, a judge has ruled.

The decision by U.S. District Judge James Boasberg comes as a sigh of relief for North Dakota's oil industry and pipeline operator Energy Transfer, but it's a setback for the Standing Rock Sioux Tribe in its five-year legal challenge against the pipeline.

Standing Rock and other Sioux tribes fighting the pipeline over fears of pollution needed to demonstrate a "likelihood of irreparable injury" from the pipeline's continued operation to warrant a shutdown, but they failed to do so, Boasberg concluded.

"The Court acknowledges the Tribes' plight, as well as their understandable frustration with a political process in which they all too often seem to come up just short," he wrote.

Boasberg previously ordered the pipeline to stop pumping oil when he revoked the permit last summer after concluding that the Corps had not adequately backed up its permitting decisions. But an appeals court ruled he had not justified the shutdown decision. The appeals court then kicked the matter back to Boasberg for further consideration, prompting Standing Rock to ask for an injunction to force the pipeline to cease operations. Boasberg denied the tribe's request Friday, siding with Energy Transfer, which has fought to keep the line running.

"We are pleased the court correctly recognized that the continued operation of the Dakota Access pipeline presents no risk of harm to others and appropriately denied the efforts to shut down this vitally important pipeline," Energy Transfer said in a statement.

The pipeline crosses federal land managed by the U.S. Army Corps of Engineers at the Missouri River just upstream from the Standing Rock Reservation. The line is considered to be trespassing on federal land without a permit, raising a question that has lingered for nearly a year as to whether the line should be allowed to keep operating.

The Corps so far has declined to force the pipeline to shut down, saying it continues to evaluate the situation.

North Dakota's top oil lobbyist called Boasberg's ruling "fantastic" after hearing the news Friday, adding that "common sense prevails."

"The pipeline has been operating safely and efficiently for almost four years," North Dakota Petroleum Council President Ron Ness said. "It's obviously great news for North Dakotans, it's great news for operators, it's great news for Fort Berthold and their economy, and it's great news for the country, frankly. It's a critical piece of American infrastructure."

North Dakota officials and representatives from the state's oil industry have predicted a significant disruption within the Bakken oil patch if the line were ever to shut down. Dakota Access has a capacity of 570,000 barrels per day and can carry as much as half North Dakota's daily oil output to market, offering a cheaper alternative to rail transport. The state estimates a shutdown would prompt the state's daily oil output to fall by more than 400,000 barrels and cause North Dakota to lose out on hundreds of millions of dollars in tax revenue over the next two years, according to court documents.

About a quarter of North Dakota's oil production stems from the Fort Berthold Indian Reservation, and Chairman Mark Fox of the Mandan, Hidatsa and Arikara Nation recently waded into the pipeline dispute, submitting a statement to the court outlining the harm a shutdown would cause to his tribe.

MHA Nation's stance put it at odds with Standing Rock.

Standing Rock on Friday vowed to keep fighting the pipeline.

"In a nation of laws there is still no justice for Standing Rock," Chairman Mike Faith said in a statement. "We are disappointed that the powers that be have failed in their proclaimed commitment to environmental justice and ensuring the sanctity of our resources, especially our water."

An attorney for the tribe reiterated that Standing Rock believes the pipeline "is too dangerous to operate and should be shuttered while environmental and safety implications are studied."

"The unacceptable risk of an oil spill, impacts to Tribal sovereignty and harm to drinking water supply must all be examined thoroughly in the months ahead as the U.S. Army Corps conducts its review of the pipeline," said Jan Hasselman, who represents the tribe with the Earthjustice law firm.

The ruling

Boasberg called out the Corps in his ruling over the agency's lack of action in taking a firm stance on what to do about the pipeline while its permit is revoked.

"The Corps has conspicuously declined to adopt a conclusive position regarding the pipeline's continued operation, despite repeated prodding from this Court and the Court of Appeals to do so," he wrote.

He added that by "ducking the controversy," the Corps "actively tolerates DAPL's continued operation underneath a key federal waterway that it lacks the necessary authorization to traverse."

"That, of course, is a political decision outside this Court's area of inquiry," he wrote. "Whether the Corps formally acknowledges such decision or not, this is the outcome it now owns."

If the tribe is to succeed in shutting down the pipeline, it will have to keep pursuing the matter with the Corps, Boasberg said.

The Corps and the U.S. Department of Justice, which represents the agency in court, did not immediately respond to a request for comment.

Boasberg's ruling also outlined where arguments from Standing Rock and the other Sioux tribes fell short. He said a chain of events would have to take place for the tribe to be harmed by the pipeline: a leak would have to occur under the river, the spill would have to be large, and the oil would have to rise 92 feet from where the pipeline is buried and fail to be contained before reaching the water.

"They have not established, as they must, that any of the chain's individual components -- let alone the feared end result -- is 'likely,' as opposed to merely 'possible,'" he said.

The tribe needed to show evidence "far beyond anything the Corps needs to itself shut down DAPL," and it has "not cleared that daunting hurdle," the judge concluded.

Boasberg's decision can be appealed, and he set a deadline of June 11 for the various parties involved in the lawsuit to update the court on the next steps they plan to take.

He has not yet ruled on a request from North Dakota Attorney General Wayne Stenehjem to intervene in the lawsuit. But Stenehjem welcomed the Friday ruling, saying he remains "confident that the final environmental analysis will again show the pipeline is an exceedingly safe way to transport oil from North Dakota to refineries."

The Corps expects the environmental review to wrap up by March 2022.

Energy Transfer plans to challenge the need for the review and has said it will file an appeal with the U.S. Supreme Court. The pipeline company has long maintained the line is safe.

Dakota Access extends from western North Dakota's Bakken oil fields to Illinois and has been in operation since June 2017. Energy Transfer is in the process of expanding it by adding pump stations to nearly double the amount of oil it can carry. That work is expected to wrap up by the end of the year.

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

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