On the day the Dakota Access pipeline was to have been shut down and emptied, a three-judge panel for the D.C. Circuit Court of Appeals ruled that a lower court did not make the findings necessary for that kind of injunctive relief.
The higher court’s decision puts the ball in the U.S. Army Corps of Engineer’s court as to whether the pipeline can continue to operate.
The panel cited the four-factor test required for an injunction, which includes a requirement that the remedy does not harm public interest, in issuing its decision on the afternoon of Wednesday, Aug. 5.
The panel did not, however, agree to reverse the lower court’s March decision requiring more environmental study of the pipeline.
Judge James Boasberg ruled in March that the “highly controversial” nature of the project meant the U.S. Army Corps of Engineers should have prepared the lengthier Environmental Impact Statement instead of the shorter Environmental Assessment when it issued an easement for the pipeline’s Lake Oahe crossing.
“At this juncture, appellants have failed to make a strong showing of likely success on their claims that the district court erred in directing the Corps to prepare an environmental impact statement,” the judges wrote.
Chase Iron Eyes, lead counsel for the Lakota People’s Law Project, said the outcome of the decision isn't as negative as it may seem for tribes and environmentalists.
“Even if the oil continues flowing for the moment, the ruling keeps us on the trajectory toward shutting down the pipeline," he said. "DAPL's permit remains vacated, and Judge Boasberg has a roadmap for strengthening his injunction per Supreme Court precedent. No pipeline should be allowed to operate without proper environmental review. We believe the law is on our side, and that Standing Rock will prevail, even if that outcome isn’t finalized until the next administration is seated.”
Reaction from industry groups was mixed. There was relief that the shutdown was reversed, but also acknowledgement that a legal thicket still remains ahead for the pipeline.
“The decision today allows the pipeline to continue operating,” said Ron Ness, president of the North Dakota Petroleum Council. “It appears there are more legal issues to be resolved, but obviously today would have been the day it would have been shut down, so it’s good news today to keep that pipeline operating and going forward.”
The Grow America’s Infrastructure Now coalition said the ruling essentially means Dakota Access will remain operational while the legal process and appeals play out, but they also used the occasion to lament continued legal assaults on infrastructure the group believes key to continued American prosperity.
“U.S. companies should not be penalized when they follow the letter and spirit of the law in their efforts to strengthen our economy and national security,” spokesman Craig Stevens said. “Activist courts that seek to shut in our nation’s natural resources and upend regulatory certainty in the energy sector will only succeed in weakening our nation and tip the balance of power in favor of foreign adversaries like Russia, Iran, and Venezuela. We hope – and fully anticipate – that commonsense will prevail and the Dakota Access Pipeline will overcome these legal challenges and continue to remain operational moving forward.”
North Dakota Republican Sens. Kevin Cramer and John Hoeven both applauded the court’s reversal of the DAPL shutdown.
“This ruling represents another victory in the fight for North Dakota energy,” Cramer said. “On the day DAPL was originally ordered to be shut down and emptied, we receive another assurance the pipeline can keep playing its important part in bolstering America’s energy dominance. I hope all sides will continue to work toward a solution everyone can accept.”
Hoeven stressed economic and national security concerns.
“We welcome the court’s decision to allow the pipeline’s continued operation during the appeals process, recognizing its significant benefits to North Dakota and our nation’s energy security,” he said. “The Dakota Access Pipeline is critical infrastructure for our state’s energy industry, providing a safe and efficient transportation option for Bakken crude for three years.”
What’s next in the legal process
The three-judge panel said it will retain jurisdiction over any further motions for stay pending appeal, and that it intends to expedite the consolidated cases.
“We expect appellants to clarify their positions before the district court as to whether the Corps intends to allow the continued operation of the pipeline notwithstanding vacatur of the easement, and for the district court to consider additional relief if necessary,” the justices wrote.
Briefs from the U.S. Army Corps of Engineers and Dakota Access will be due Aug. 26, and the remaining briefs are set to follow on various days in September.