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Tribes have not met 'high bar' for Dakota Access Pipeline shutdown, Corps says

Tribes have not met 'high bar' for Dakota Access Pipeline shutdown, Corps says

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Dakota Access River Crossing

The Dakota Access Pipeline crosses under the Missouri River from Morton County into Emmons County at this site near the power lines. To the south lies the community of Cannon Ball on the Standing Rock Sioux Reservation.

Shutting down the Dakota Access Pipeline would "cause economic harm and shift oil transport to more risky methods" and should not occur, a federal permitting agency argued in the latest round of legal filings in the ongoing dispute over the oil pipeline.

The same judge who ordered the line to cease operations this past summer is considering another a plea from the Standing Rock Sioux and other tribes to shut the line down after a higher court overturned part of the initial ruling. An appellate court said U.S. District Judge James Boasberg "did not make the findings necessary" for a shutdown in his July order, and it kicked the matter back to him for further consideration.

Recent legal filings have rehashed familiar arguments from the U.S. Army Corps of Engineers, pipeline developer Energy Transfer, the tribe and others with a stake in the outcome of the pipeline dispute. Standing Rock tribal members are concerned that an oil spill at the pipeline's Missouri River crossing would harm their water supply, while the Corps and Energy Transfer maintain the line is safe.

The Corps in a brief submitted Friday said the tribes have not met the "high bar" required for a shutdown, in which they must show they are certain or likely to "suffer an irreparable injury that cannot be remedied and that the balance of hardships tips in their favor."

"The scales are not close to evenly balanced," the Corps said.

The agency argued the risk of a significant oil spill is low and called tribes' concerns "speculative and abstract." 

Shutting down the pipeline would prompt the oil industry to rely more on trains to transport crude, which poses risks, the Corps said. Fiery oil train derailments can be deadly, such as when a train carrying Bakken crude derailed in Quebec in 2013, killing 47 people.

The North Dakota attorney general's office also filed a brief Friday outlining potential harm to the state if the pipeline were to shut down. The office argued the oil industry would lose billions of dollars and that state tax revenue would see "drastic reductions." A shutdown also would lead to job losses and would stymie the state's economic recovery, the state said.

North Dakota's oil industry has taken a hit this year amid low crude prices brought on by a price war this past spring between Russia and Saudi Arabia, as well as low oil demand during the coronavirus pandemic.

Standing Rock has long said claims of a devastating financial hit from shutting down Dakota Access are exaggerated.

The tribe maintains that Boasberg should shut down the pipeline as it's unlikely the Corps will require it to stop operating, something the agency could choose to do after the judge this past summer revoked the pipeline's easement. Boasberg invalidated the permit while the Corps completes a lengthy environmental review of the pipeline, which he also ordered.

The Corps says it has discretion in how to handle the lack of a valid easement, but it has not indicated what, if any, action it will take. The pipeline is considered an "encroachment" on federal property managed by the Corps at its Missouri River crossing just north of the Standing Rock Reservation.

"The Tribes are irreparably harmed by the ongoing operation of the pipeline, through the exposure to catastrophic risk, through the ongoing trauma of the government's refusal to comply with the law, and through undermining the Tribes' sovereign governmental role to protect their members and respond to potential disasters," Standing Rock and other Sioux tribes told Boasberg in a brief last month.

The tribe said Boasberg could clarify that shutting down the pipeline is "a component" of revoking the easement.

More legal filings are due to Boasberg in mid-December, after which point the judge is expected to make a ruling.

The parties also are waiting on a separate ruling from the higher U.S. Court of Appeals for the D.C. Circuit that will determine whether the pipeline's easement remains revoked and whether the Corps must complete the environmental study of the line, which has been in operation for more than three years.

Boasberg in March ordered that environmental review, known as an Environmental Impact Statement. Work began in September and is expected to take more than 13 months to complete.

Dakota Access extends for 1,200 miles from North Dakota's Bakken oil fields to a shipping hub in Illinois. It transports up to 570,000 barrels per day of oil, and work is underway to nearly double its capacity to 1.1 million barrels per day by adding pumping stations along the route.

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


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