Judge axes NEPA review of Dakota Access. Will it shut down?

The Standing Rock Sioux Tribe scored a long-awaited win yesterday when a federal judge ordered the government to rework its environmental analysis of a controversial pipeline that is already carrying oil between North Dakota and Illinois.

Parties in the Dakota Access dispute must now tell Judge James Boasberg for the U.S. District Court for the District of Columbia whether the pipeline should be shut down while the Army Corps of Engineers completes a more robust National Environmental Policy Act review of the project.

"Unrebutted expert critiques regarding leak-detection systems, operator safety records, adverse conditions, and worst-case discharge mean that the easement approval remains 'highly controversial' under NEPA," Boasberg wrote in his opinion filed yesterday.

"As the Court thus cannot find that the Corps has adequately discharged its duties under that statute, it will remand the matter to the agency to prepare an Environmental Impact Statement," he wrote.

The judge, an Obama appointee, said it was not enough for an agency to simply try to address concerns raised under the NEPA process.


"That's a good win for the tribes," said Jeanette Wolfley, a professor at the University of New Mexico School of Law. "They have finally convinced the court that the Corps hasn't actually met its [NEPA] obligations."

Boasberg prominently cited a decision last year by the U.S. Court of Appeals for the District of Columbia Circuit striking down an environmental review for an already completed transmission line across the James River.

While that project is still in service while the Army Corps revisits its analysis, it remains to be seen whether Boasberg will allow Energy Transfer Partners to continue to operate Dakota Access during its own NEPA redo.

There could also be an appeal to the D.C. Circuit.

Boasberg raised the possibility of tossing the project's permit, which would temporarily halt the flow of crude oil through the 1,172-mile pipeline as the Army Corps completes the required EIS.

Parties in the case must submit additional briefs on the fate of the pipeline in the interim.

"The question of whether or not to vacate the permit is based on how badly the Army Corps screwed this up," said Earthjustice attorney Jan Hasselman, who represents the tribes in the case.

"This was not nitpicking, or failure to connect the dots, or some minor problem," he continued. "It was a wholesale failure to take this issue seriously."

The Standing Rock Sioux Tribe argued that the Army Corps failed to comply with a previous court decision requiring a more thorough assessment of the oil spill risks posed by the pipeline. The federal agency determined that its previous environmental assessment, a less stringent form of analysis, was sufficient (Energywire, Sept. 4, 2018).

Boasberg's finding that the Army Corps violated NEPA by determining an EIS was unnecessary is significant, said Wolfley, who wrote a brief in support of the pipeline challengers.

"It's going to take [the Army Corps] a while to go through the whole analysis and present for comment," she said.

Hasselman noted the tribes had been calling for the Army Corps to conduct an EIS since 2014.

"There was a time when this fight attracted the attention of the whole world," he said. "The people of Standing Rock never gave up this fight despite incredibly long odds.

"This victory is a testament to their perseverance."

House Natural Resources Committee Chairman Raúl Grijalva (D-Ariz.) praised the court's decision yesterday and urged Boasberg to proceed to the next step of shutting down the pipeline.

"As it turns out, critics of this pipeline and projects like it are right when they say the law requires the administration to take the concerns of tribes and other impacted communities seriously," the congressman said in a statement.

"When they don't, the courts will hold them accountable," he continued. "The Dakota Access pipeline needs to be shut down now and restarted only if it can operate consistent with the legal rights of the people who are impacted."

Email: nfarah@eenews.net

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