Judge keeps Dakota Access on ice pending appeal

By Niina H. Farah | 07/07/2020 01:13 PM EDT

Construction of the Dakota Access pipeline near New Salem, N.D.

Construction of the Dakota Access pipeline near New Salem, N.D. Tony Webster/Flickr

A federal judge today shot down a request by the developer of the Dakota Access oil pipeline to keep the controversial project operational during a court-ordered revamp of a key environmental analysis.

U.S. District Court for the District of Columbia Judge James Boasberg stunned court watchers yesterday when he gave Energy Transfer Partners (ETP) until Aug. 5 to shut down and empty the 1,172-mile oil pipeline, which has been in operation for three years.

Boasberg, an Obama appointee, blocked operation of the pipeline until the Army Corps of Engineers addresses its violations of the National Environmental Policy Act during its approval of an easement to build the pipeline beneath Lake Oahe (Greenwire, July 6).


ETP subsidiary Dakota Access LLC filed a swift plea to the U.S. Court of Appeals for the District of Columbia Circuit in an effort to reverse Boasberg’s ruling.

Dakota Access also asked Boasberg to put a provisional stay on his own order pending appeal, saying it couldn’t shut down the pipeline safely in the amount of time provided by the court. The request sought to put an immediate hold on the order while the company prepares a stay request.

"[A] number of time-consuming and expensive steps are required to shut the pipeline down safely and empty it of oil," the company wrote in a filing yesterday. "That process would require well more than 30 days in any event.

"A provisional stay is therefore necessary to ensure that Dakota Access is not required to take these steps before this Court (or the D.C. Circuit, if needed) rules on the forthcoming motion for stay pending appeal."

Boasberg instead followed a recommendation by the Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe, Oglala Sioux Tribe and Yankton Sioux Tribe — which have all opposed the pipeline — to reject the company’s request.

The tribes today asked the court to hold a status conference of the parties in the case after Dakota Access files its motion to stay in order to determine the appropriate next steps.

Dakota Access plans to seek a stay from the D.C. Circuit if Boasberg still declines to halt his order.