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Judges hear appeal on Dakota Access Pipeline permit, study

Judges hear appeal on Dakota Access Pipeline permit, study

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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 dispute over the Dakota Access Pipeline reached a panel of appellate judges Wednesday, with a federal agency and the operator making their case as to why the line should forgo a lengthy environmental review and why a key permit should be reinstated.

The Standing Rock Sioux and other tribes fighting the pipeline sought to keep in place part of a lower-court ruling that rescinded the pipeline’s easement for its Missouri River crossing just upstream of the Standing Rock Reservation, as well as another ruling ordering the U.S. Army Corps of Engineers to complete a thorough Environmental Impact Statement.

The tribes fear a spill into the river would pollute their water supply. Corps attorney James Maysonett opened the hearing saying that the lower court “misapplied the law by ignoring the low risk of a spill.”

The three judges on the U.S. Court of Appeals for the D.C. Circuit who listened to the case questioned him on numerous parts of the Corps’ argument, including the agency's interpretation of pipeline operator Energy Transfer’s safety record. They referenced data for a subsidiary, Sunoco, showing that the company had 1.42 accidents per 1,000 miles of pipeline in 2019. That falls above a 2017 national industry standard of 0.848 accidents per 1,000 miles.

Maysonett suggested that if the judges thought the agency needed to further analyze the company’s safety history, they could do so simply by directing the Corps to provide that information.

“If that’s a critical issue, I think the answer to that is not to compel the preparation of an Environmental Impact Statement but to remand that question to the Corps to consider why they did or didn’t consider that and why it does or does not matter,” he said.

Although the Corps is fighting the EIS in court, it began work on the environmental review in September and is in the process of identifying the scope of what the study will entail. The agency originally said the review would take 13 months but backtracked in a court document filed earlier this week, saying it anticipates the process will take longer due to Energy Transfer’s expansion plans for Dakota Access.

The company is adding pump stations in three states, including near Linton in North Dakota, to nearly double the amount of oil that can flow through the line to 1.1 million barrels per day. The judges inquired about how the Corps will handle those plans, as the company has said it anticipates the expanded capacity to be finished in the third quarter of 2021.

“The Corps may need to take more time to consider that and how it affects their analysis,” Maysonett said.

Miguel Estrada, an attorney for the pipeline operator, said the expansion plans should not affect decisions surrounding the easement.

“I don’t think it is inherently part of the regulatory job of the Army Corps to police how many barrels of oil go through a pipeline,” he said, adding that the issue falls under the jurisdiction of other regulatory agencies.

The Corps is asking the judges to reinstate the pipeline’s easement, which U.S. District Judge James Boasberg rescinded in a July order. Simultaneously, the agency is weighing whether to allow the pipeline to continue operating without an easement, as the line is now considered an “encroachment” on federal property.

The Corps is not suggesting any specific action be taken at this point in time, such as shutting down the pipeline, but it’s continuing to work through the issue, Maysonett said.

An attorney for the tribes argued that the Corps “is trying to frame this as an exercise of enforcement discretion, but that isn’t the right framework.”

“Here, the Army Corps is the wrongdoer,” said Jan Hasselman, who represents Standing Rock. “The agency doesn’t get to decide the remedy for itself.”

He also said that the low probability of a catastrophic oil spill doesn’t exempt the Corps from having to complete a rigorous environmental review.

“Oil spills are not remote and speculative,” he said. “They are completely foreseeable events that the agency needs to deal with.”

The dispute over the pipeline’s environmental review has lingered for four years since Standing Rock first sued over the project in July 2016.

Dakota Access began operating in June 2017 while litigation continued to play out. Boasberg, the district court judge, at that time ordered that the Corps further address the potential impacts of a spill to the Standing Rock Reservation.

The Corps completed that work but Boasberg concluded that it wasn't sufficient, writing in a ruling this past March that “too many questions remain unanswered." He ordered the EIS in that same ruling.

“The district court gave the Army Corps an opportunity to get it right,” Hasselman said. “It gave the Corps ... a roadmap on how to come into compliance, and the agency was not able to justify its conclusion.”

The pipeline fight has grown increasingly complex this year as it plays out on multiple levels within the federal court system and the Corps begins the EIS process while weighing what to do about the pipeline’s encroachment status.

The judges hearing the case in the D.C. Circuit are David Tatel, Patricia Millett and David Sentelle. They did not make a ruling Wednesday.

Reach Amy R. Sisk at 701-250-8252 or


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