Oil keeps flowing while review continues under critics’ watch

By Ellen M. Gilmer | 10/12/2017 07:30 AM EDT

The Dakota Access pipeline will not stop service while the Trump administration sharpens an environmental review for the project, but legal action will continue to trudge forward.

The Dakota Access pipeline will not stop service while the Trump administration sharpens an environmental review for the project, but legal action will continue to trudge forward.

The U.S. District Court for the District of Columbia yesterday declined to scrap permits for the contentious oil pipeline. The judge ruled that although the Army Corps of Engineers had not adequately considered certain impacts from the project, the deficiencies were not severe enough to warrant halting pipeline operations.

Dakota Access supporters cheered the news, while tribal and environmental advocates expressed grave disappointment (E&E News PM, Oct. 11).


"It only makes sense to shut down the pipeline while the Army Corps addresses the risks that this court found it did not adequately study," newly inaugurated Standing Rock Sioux Tribe Chairman Mike Faith said in a statement. "From the very beginning of our lawsuit, what we have wanted is for the threat this pipeline poses to the people of Standing Rock Indian reservation to be acknowledged."

In keeping with a familiar refrain for this pipeline, though, the court battle is not over yet.

While yesterday’s order cannot be appealed, another round of legal wrangling is on deck, and opponents of Dakota Access are prepared to keep pushing for closer scrutiny of the pipeline’s impacts on the Standing Rock and Cheyenne River Sioux tribes.

"It’s not the end of this battle; it’s not the end of the story," said Center for Biological Diversity attorney Bill Snape, who joined an amicus brief in the case. "It obviously is a disappointment, but the ball is in the Army Corps’ court.

"You better believe that the tribes and the environmental groups and the citizens are going to be looking at what the corps puts together very carefully and will be very suspicious of any attempt to gloss over a problem."

The Army Corps is revising its National Environmental Policy Act review for the pipeline to include increased consideration of oil spill risks, environmental justice impacts and effects on tribal hunting and fishing rights. The review is expected to be finished next spring.

Warning from the court

Judge James Boasberg’s order yesterday also came with a warning for the administration: Don’t shortcut this process.

"That determination does not, however, excuse Defendants from giving serious consideration to the errors identified in this Court’s prior Opinion," he wrote. "Compliance with NEPA cannot be reduced to a bureaucratic formality, and the Court expects the Corps not to treat remand as an exercise in filling out the proper paperwork post hoc."

Earthjustice lawyer Jan Hasselman, representing Standing Rock, said that’s exactly what the tribe is afraid of.

"This approach says, ‘Go do whatever you’re going to do and then think about it afterwards,’" he said after yesterday’s decision. "[Boasberg] has some stuff in there about ‘Don’t treat this like a paperwork formality.’ But I think we’re legitimately concerned that’s what’s going to happen here."

Snape said he’s confident Boasberg will hold the Trump administration to a high standard.

"If the Army Corps in their mandated analysis they need to do, if the judge feels as though they’re spooning BS, I got the impression he was going to call them on it," he said.

"If I’m an Army Corps lawyer right now, I’m taking his words of admonition very, very seriously because I think he’s going to look at what the Army Corps does in very close detail," Snape said.

Next on the docket

Before critics parse the Army Corps’ added review, however, the two sides have more immediate legal issues to settle.

Over the summer, the tribes filed briefs urging Boasberg to take the oil pipeline out of service during the new review process. But they also made a backup request: A few new rules governing pipeline operations should it remain in service.

The tribes asked the court to order Dakota Access and the Army Corps to coordinate with them on emergency response planning in case of an incident at the pipeline’s Lake Oahe crossing north of the Standing Rock Indian Reservation.

They also asked the court to implement a third-party compliance auditing system and public reporting, as recommended in federal guidelines from the Pipeline and Hazardous Materials Safety Administration.

Boasberg declined to grant the request in yesterday’s ruling but called for a new round of legal briefs from Dakota Access and the Trump administration on the issue. The parties will meet in court next Wednesday to hash out a schedule.