Pipeline’s fate uncertain after big legal victory for tribes

By Ellen M. Gilmer | 06/15/2017 07:28 AM EDT

The Dakota Access pipeline faces an unclear future after a federal court issued a stunning decision last night ordering regulators to conduct additional review of the project’s potential impacts.

Earthjustice attorney Jan Hasselman speaks outside a federal courthouse in September in the early stages of the Standing Rock Sioux Tribe's legal battle against the Dakota Access pipeline.

Earthjustice attorney Jan Hasselman speaks outside a federal courthouse in September in the early stages of the Standing Rock Sioux Tribe's legal battle against the Dakota Access pipeline. Ellen M. Gilmer/E&E News

The Dakota Access pipeline faces an unclear future after a federal court issued a stunning decision last night ordering regulators to conduct additional review of the project’s potential impacts.

The U.S. District Court for the District of Columbia will separately consider whether the pipeline — which is already shipping crude from North Dakota to Illinois — should be shut off in the meantime. Lawyers for the tribes, the government and Dakota Access will meet in court next Wednesday to discuss the next steps in the case.

Leaders of the Standing Rock Sioux Tribe, which has been challenging the pipeline in court since last summer, were elated when news of the court’s decision broke last night.


"The previous administration painstakingly considered the impacts of this pipeline and President Trump hastily dismissed these careful environmental considerations in favor of political and personal interests," tribal Chairman Dave Archambault II said in a statement. "We applaud the courts for protecting our laws and regulations from undue political influence, and will ask the Court to shut down pipeline operations immediately."

In a 91-page opinion handed down just before 6 p.m. EDT yesterday, Judge James Boasberg ruled that the Army Corps of Engineers "largely complied with NEPA" but noted "substantial exceptions," including that the agency did not sufficiently consider certain potential impacts of an oil spill on fishing and hunting rights and on environmental justice. The agency did not respond to a request for comment.

The decision comes three years after Energy Transfer Partners LP informed the Army Corps that it planned to build the pipeline beneath Lake Oahe, a dammed section of the Missouri River just a half-mile north of the Standing Rock Indian Reservation. The project set off years of conflict, the most intense opposition occurring last fall when thousands of demonstrators camped out to protest the pipeline as construction moved closer to the lake.

The project became the focal point for multiple movements focused on tribal rights, climate change and various environmental issues.

"This decision marks an important turning point. Until now, the rights of the Standing Rock Sioux Tribe have been disregarded by the builders of the Dakota Access Pipeline and the Trump Administration — prompting a well-deserved global outcry," Earthjustice attorney Jan Hasselman said in a statement. "The federal courts have stepped in where our political systems have failed to protect the rights of Native communities."

Community organizers from the Indigenous Environmental Network likewise praised the decision as "a major blow to big oil" and a step toward greater consideration of tribal lands and rights affected by federal permitting processes.

Pipeline supporters from the pro-infrastructure GAIN Coalition, meanwhile, were quick to point out the limitations of the court’s "split decision," which rejected several primary arguments raised by the Standing Rock and the Cheyenne River Sioux tribes.

"In his decision, Judge Boasberg disposed of nearly all of the Tribes’ claims and the handful that remain do nothing to impact the ongoing operation of the pipeline nor do they undermine the work of the more than 8,000 individuals across the four states who built it," spokesman Craig Stevens said in an email. "The Dakota Access Pipeline remains one of the safest — if not the safest — pipeline ever constructed.

"And while we have little doubt that the Corps will ultimately be successful in satisfying the Court’s concerns," he added, "tonight’s decision continues the public saga of the project and jeopardizes ongoing infrastructure investment."

A spokeswoman for Dakota Access did not respond to a request for comment.

Details of the decision

Standing Rock and Cheyenne River had requested summary judgment from the district court on several claims, including that the Army Corps incorrectly determined there would be no significant impact from the pipeline crossing at Lake Oahe, that the pipeline did not qualify for the general permitting system often used by the agency, and that the Trump administration was arbitrary and capricious in its reversal of Obama officials’ December decision to do a full environmental impact statement for the pipeline.

The court rejected several of the tribes’ arguments, including that the Army Corps underestimated the risk of an oil spill, inadequately considered cumulative impacts from the project and failed to fully weigh alternatives to the Lake Oahe crossing. It also ruled that the Trump administration’s reversal of EIS plans was adequately reasoned and lawful.

But Boasberg, an Obama appointee, was swayed by Standing Rock’s argument that the agency didn’t take into account certain critical factors when it determined that the project would have no significant impact on the environment.

Council on Environmental Quality regulations stipulate that agencies should consider whether an action is "highly controversial," in terms of potential effects, when weighing whether to classify the impact as "significant" and conduct an EIS.

Boasberg noted that the Army Corps does not appear to have considered a number of expert reports alleging flaws in the agency’s analysis before it approved the final easement for the pipeline in February.

Further, he concluded, the Army Corps’ environmental assessment did not consider the impacts of a possible oil spill on the tribe’s treaty rights to hunting and aquatic resources in Lake Oahe, despite multiple complaints from tribal officials that the agency should look at the issue more closely.

"Without any acknowledgment of or attention to the impact of an oil spill on the Tribe’s fishing and hunting rights, despite Plaintiff’s efforts to flag the issue, the EA — in this limited respect — was inadequate," he wrote.

Boasberg also took issue with the Army Corps’ treatment of environmental justice issues in the environmental assessment, which considers impacts within a half-mile of the pipeline, leaving out the Standing Rock reservation just beyond that range. Tribal lawyers had argued that the scope of the analysis was "gerrymandered" to avoid analyzing the risk to minority and low-income populations on the reservation.

Yesterday’s opinion concludes that "the court is hard pressed to conclude that the Corps’ selection of a 0.5-mile buffer was reasonable."

"The Corps … needed to offer more than a bare-bones conclusion that Standing Rock would not be disproportionately harmed by a spill," Boasberg wrote.

What’s next

Summing up a question asked by stakeholders on all sides of the pipeline debate last night, Boasberg wrote: "So where does that leave us?"

That’s the billion-dollar question at this stage, as the fate of the $3.8 billion pipeline hangs in the balance. The Army Corps is now required to undertake additional analysis to correct the issues raised in court’s opinion, but it’s uncertain what will happen to Dakota Access in the meantime.

Boasberg noted that the standard remedy within the D.C. Circuit for a NEPA violation is vacating the agency action. That would mean scrapping the Army Corps permits and easement for the pipeline and forcing it shut down until the NEPA inadequacies are corrected.

"Such a move, of course, would carry serious consequences that a court should not lightly impose," Boasberg continued, noting that courts have discretion to consider the "seriousness of the order’s deficiencies" and the "disruptive consequences" that would follow if permits are revoked.

He ordered a new round of briefs for all sides to argue their positions on that question. The schedule will likely be set during next Wednesday’s hearing.

A decision to shut off a pipeline for inadequate environmental review would be unprecedented. In a 2014 decision, for example, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the Federal Energy Regulatory Commission violated NEPA by segmenting its review of a Tennessee Gas Pipeline Co. project, but the court allowed the pipeline to remain in service while FERC supplemented the review.

ClearView Energy Partners analyst Christi Tezak said the likelihood of the court freezing pipeline operations depends on how prepared the Army Corps is to address the perceived shortcomings of its review.

"At this time, we think that the Corps may be able to persuade the court to allow Dakota Access to continue operating while the omissions are addressed and the court reviews them for adequacy," she said in a memo last night. "We base this view on our expectation that the Corps will argue at the upcoming status conference that it has the information required to address the omissions in the EA, and that it can provide the missing analysis for the highly controversial nature of the project required under NEPA."

But, she added: "If the Corps does not make this argument, and asserts it does need to undertake additional/incremental study, the Judge may suspend operations while the Corps addresses these issues."