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Ruling in Dakota Access Pipeline dispute favors Standing Rock, but fight not over
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Ruling in Dakota Access Pipeline dispute favors Standing Rock, but fight not over

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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.

A federal appeals court largely sided Tuesday with the Standing Rock Sioux Tribe in its long-standing fight against the Dakota Access Pipeline, upholding lower court decisions that revoked a key permit for the line and required a federal agency to conduct a lengthy environmental review.

The order from the U.S. Court of Appeals for the D.C. Circuit does not mean the legal battle is over, nor does it require the pipeline to shut down. The ruling also could be appealed to the U.S. Supreme Court.

Standing Rock Chairman Mike Faith said the tribe is pleased with the ruling and recalled in an interview how the fight against the pipeline began in 2016 at the confluence of the Missouri and Cannonball rivers. Protest camps popped up, drawing thousands of supporters to the path of pipeline construction. Demonstrators and police squared off for months, resulting in hundreds of arrests.

"For 4 ½ years we stood up to this, from the gathering up there at Cannon Ball and the bridges to taking it to the level of the court," he said. "I think it's a good thing where we're at."

The tribe's attorney, Jan Hasselman, said the ruling "clears away any remaining ambiguity about the legal status of the pipeline."

Dakota Access crosses the Missouri River just upstream of the Standing Rock Reservation, and tribal members are concerned about the potential for an oil leak that would pollute their water supply. The U.S. Army Corps of Engineers, which permitted the pipeline, and developer Energy Transfer maintain that Dakota Access is safe.

The Corps declined to comment on Tuesday's ruling, and Energy Transfer did not immediately respond to a request for comment.

The ruling reaffirmed an earlier decision from a panel of the D.C. Circuit judges that reversed a July 2020 lower court order requiring the pipeline to stop operating and be emptied of oil within 30 days.

The panel in August 2020 kicked the matter back to U.S. District Judge James Boasberg for further consideration, and he has not yet ruled on whether the pipeline can continue operating while the easement for the line's Missouri River crossing remains revoked.

Still, the potential for a shutdown lingers, a prospect that has the oil industry and many North Dakota officials nervous. The 1,200-mile line has operated for more than three years and carries as much as half of the state's daily oil output to market. Supporters say it's played a significant role in making Bakken crude competitive with oil produced in other shale plays, such as the Permian Basin of Texas and New Mexico.

"The key question now is what does the Biden administration do?" Hasselman said.

Eyes on Biden

Faith and leaders of other tribes fighting the pipeline sent a letter to President Joe Biden the day before he took office last week asking him to order the Corps to force the line to stop operating. Standing Rock sued the Corps four years ago over the line's easement.

The letter came on the heels of reports that Biden would cancel a permit for the Keystone XL pipeline, which would carry tar sands crude from Canada into the United States. That pipeline faced opposition from tribes and environmentalists. Biden followed through, revoking that permit on his first day in office.

Tribes fighting Dakota Access hope for a similar outcome.

"We look forward to your swift action on this important issue, which is grounded in treaty rights, Nation-to-Nation consultation, environmental justice, and climate and environmental concerns," the tribal leaders wrote. "It is beyond time for the United States to fulfill the promises that it made in the Treaties and stop the illegal trespass of our lands and waters."

Multiple presidents have waded into the dispute over Dakota Access. The Obama administration said in December 2016 that it would not approve the line's easement and planned to launch a thorough environmental review of the pipeline. Less than two months later, President Donald Trump assumed office and immediately signed a series of memos aimed at speeding up the permitting process for Dakota Access. The Corps, under his direction, issued the line's easement in February 2017.

Pipeline proponents hope politics will stay out of the dispute going forward.

"The Biden Administration has an opportunity to bring sanity and clarity to this discussion by following the Appeals Court's direction and allowing the regulatory process to move forward -- unhindered by political influence," said Craig Stevens, spokesman for the GAIN Coalition of businesses, trade associations and labor groups. "Doing so will go a long way towards ensuring regulatory certainty for those individuals and companies seeking to invest in our nation's infrastructure."

His group offered a mixed reaction to Tuesday's ruling, saying it was pleased the court reiterated its earlier opinion that the line could keep operating. But the coalition was disappointed the judges determined the Corps' initial environmental review of the pipeline was insufficient, Stevens said.

The first week of Biden's presidency has not boded well for the oil industry. Beyond the Keystone XL decision, Biden directed the U.S. Environmental Protection Agency to prepare a rule aimed at eliminating methane emissions. Methane is a potent greenhouse gas that contributes to climate change. It's odorless and invisible to the naked eye, but infrared cameras show that it can leak from oil and gas infrastructure.

The Biden administration also issued a 60-day suspension of permitting and leasing for fossil fuel development on federal lands, and the president is expected to make a further order on the matter Wednesday.

The ruling

A potential pipeline shutdown could also come from the Corps itself, a possibility D.C. Circuit Judges David Tatel, Patricia Millett and David Sentelle raised in the opinion that accompanied their ruling Tuesday.

Without an easement, Dakota Access is considered an "encroachment" on federal property managed by the Corps surrounding the Missouri River. The Corps has not moved to block the line's operation, nor has it given a green light ensuring the line can keep pumping oil without an easement.

Tatel, who authored the opinion, wrote that "it may well be" that the law or Corps regulations "oblige the Corps to vindicate its property rights by requiring the pipeline to cease operation." He said he expects the Corps to decide "promptly." A lack of action amounts to a "de facto" approval of the pipeline without the proper environmental analysis required by federal law that the Corps has conceded it must take into account, the opinion says.

Ongoing review

The environmental analysis of the pipeline is at the heart of Standing Rock's legal fight. The tribe has long argued that the initial review was inadequate and that a far more thorough study known as an Environmental Impact Statement is needed.

The EIS process began last September after a Boasberg order and is expected to take more than 13 months. The Corps has said it intends to consider Energy Transfer's plans to expand the pipeline's capacity in its review. The company is adding pump stations in three states, including near Linton in Emmons County, to nearly double the amount of oil Dakota Access can carry. The pipeline has a capacity of 570,000 barrels per day, and the expansion would allow it to transport as much as 1.1 million barrels per day.

The letter from the tribes to Biden called for "meaningful" consultation between the federal government and Indigenous nations on the environmental review, including scrutinizing potential alternatives to the pipeline's continued operation.

Faith said Tuesday that the pipeline's predicament stems from the Corps' actions.

"It's easy to point fingers at Standing Rock and the other Sioux tribes that joined in, but please keep in mind the Corps of Engineers is the big factor here," he said. "They should have done an Environmental Impact Statement from the get-go."

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

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