Supreme Court rejects Dakota Access NEPA battle

By Niina H. Farah, Pamela King | 02/22/2022 01:47 PM EST

Dakota Access Pipeline construction.

Construction on the Dakota Access pipeline near New Salem, N.D., in 2016. Tony Webster/Flickr

The Supreme Court today dealt a blow to a pipeline developer, deciding against hearing a dispute over environmental reviews for infrastructure projects.

In a short order issued this morning, the justices declined to wade into a yearslong legal fight between the federal government and the Standing Rock Sioux Tribe over potential oil spill risks from the Dakota Access pipeline, which runs from North Dakota to Illinois.

Developer Energy Transfer LP has said that a rejection by the high court could leave the project at risk of a new shutdown order.

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In 2020, Judge James Boasberg of the U.S. District Court for the District of Columbia said that Dakota Access, which has been operating since 2017, should be closed and drained of oil pending completion of a more robust National Environmental Policy Act review.

Boasberg, an Obama appointee, said the Army Corps of Engineers must take a closer look at spill risks to support an approval for the 1,172-mile pipeline to cross beneath Lake Oahe in the Dakotas, located about a half-mile from the Standing Rock Sioux reservation.

The U.S. Court of Appeals for the D.C. Circuit walked back the shutdown order but agreed with Boasberg that NEPA required a more stringent analysis of spill risks.

Dakota Access asked the Supreme Court to step in after the D.C. Circuit issued its ruling, arguing that the decision left the pipeline “vulnerable to a shutdown.” The energy company said the court had overstepped its authority and questioned whether agencies must fully resolve all criticisms of their NEPA reviews in court before determining a project does not require more extensive analysis (Energywire, Sept. 21, 2021).

So far, Dakota Access has been operating without a permit as the Army Corps continues its review. Completion of the final analysis is expected in September.

The Justice Department had urged the Supreme Court to reject Energy Transfer’s plea.

An attorney for the Standing Rock Sioux Tribe applauded the Supreme Court’s move, which brings an end to years of legal wrangling over the pipeline.

“The litigation concerning the pipeline is over, but the fight continues.  We call on the administration to close the pipeline until a full safety and environmental review is complete,” said Earthjustice senior attorney Jan Hasselman in a statement. Dakota Access “never should have been authorized in the first place, and this administration is failing to address the persistent illegality of this pipeline.”

Energy Transfer declined to make a statement, citing its policy not to comment on “current or pending legal matters.”

Justices Samuel Alito and Brett Kavanaugh did not participate in the decision to reject the petition, Dakota Access LLC v. Standing Rock Sioux Tribe. The court declines to take up most cases that come its way.

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