A federal judge has ruled that the Dakota Access pipeline must shut down while a more lengthy environmental study is conducted.
The pipeline must cease operation and empty by Aug. 5, Judge James Boasberg wrote in his order.
The 24-page order acknowledges the “quantifiable and catastrophic” effect this will have on lives and livelihoods in North Dakota and other states. But not vacating the permits would undermine the very purpose of the National Environmental Protection Act, which requires agencies to take a “hard look” before they construct a project, not after.
“If projections of financial distress are sufficient to prevent vacatur, the court fears that agencies and third parties may choose to devote as many resources as early as possible to a challenged project — and then claim disruption in light of such investments,” Boasberg wrote. “Such a strategy is contrary to the purpose of NEPA, which seeks to ensure that the government ‘looks before it leaps.’”
Chase Iron Eyes, a member of the Standing Rock Sioux Tribe and lead counsel for the Lakota People’s Law Project, applauded the ruling.
“The ruling to shut down oil flow through the Dakota Access pipeline is appropriate, given how much Standing Rock and its allies have suffered in recent years,” he said. “The fact that President Trump was able to simply reverse the Obama administration, by green-lighting the construction of DAPL without a full environmental impact assessment having been done, reveals a vulnerability in our system of government.”
That vulnerability has been eased by Boasberg’s ruling, Iron Eyes said.
“We are grateful that the National Environmental Policy Act — as well as its author, Congress — are now being shown the respect they deserve,” he said.
Energy Transfer Partners, meanwhile, said the ruling is not supported by the facts or the law.
“We will be immediately pursuing all available legal and administrative processes and are confident that once the law and full record are fully considered, Dakota Access Pipeline will not be shut down and that oil will continue to flow,” a media statement said. “We intended to immediately file a motion to stay this decision, and if not granted, to pursue a stay and expedited appeal with the Court of Appeals.”
Dakota Access takes 570,000 barrels of Bakken crude daily to Illinois, about 40 percent of the state’s normal production. From there, it goes to refineries throughout the Midwest and Gulf Coast.
North Dakota officials, in a brief to the court, said it would take two years to divert 500,000 barrels of oil from the pipeline to rail. That would not only jeopardize oil jobs, but would potentially displace grain and other products that rely on rail transportation.
Drilling activity in North Dakota increased about 20 percent once Dakota Access began, due to the reduction in transportation costs.
“A DAPL shutdown would have at least a two-fold immediate impact here,” oilfield consultant and Fracn8tr Monte Besler told the Williston Herald. “The options for export of crude oil from North Dakota are limited, with the other readily available method being the considerably more costly railroad.”
Rail cars aren’t likely geared up to handle so many barrels of oil yet, Besler added.
“That could force the shutdown of even economical wells,” he added.
Industry groups like the American Petroleum Institute and the Grow America’s Infrastructure Now Coalition said the ruling is yet another example of runaway activists exploiting the legal system to destroy America’s energy industry. They called for reforms to the permitting process to protect both the availability of affordable energy for citizens as well as national security.
“These energy pipeline projects are too important to the American people to allow them to be disrupted by frivolous lawsuits and overreaching judicial decisions,” said Andy Black, president and CEO of the Association of Oil Pipelines said. “The Dakota Access pipeline has operated safely for over three years in compliance with extensive federal pipeline safety regulations. However, a court in Washington, DC has now agreed with groups harassing this project that the over 1,000 pages of environmental review conducted before the project was constructed is insufficient.”
North Dakota Petroleum President Ron Ness said the ruling does not improve safety for either people or the environment.
“Shutting down the pipeline will have a greater negative impact on safety than any environmental benefit the court is claiming to gain,” he said. “(It will put) more trucks on our roads, and more rail cars on the tracks, nearly 900 railcars per day.”
North Dakota lawmakers were also troubled by the ruling.
“No one cares more about North Dakota’s clean water than the people who live here,” Gov. Doug Burgum said. “And if a single judge is able to shut down a state-of-the-art pipeline project that was permitted and has been operating safely for more than three years, it would have a chilling effect on America’s ability to build, modernize and improve our nation’s critical infrastructure.”
Sen. Kevin Cramer, R-N.D., called it a “terrible ruling” that should be promptly appealed, while Rep. Kelly Armstrong described it as a win for radical environmentalists.
Sen. John Hoeven said the pipeline has already been through extensive study.
“Today’s district court ruling comes at a very difficult time because it will severely impact our state’s economy at the same time we are working to recover from the impacts of the COVID-19 pandemic,” he added. “We anticipate the company will appeal the decision to the Circuit Court, which should allow the Dakota Access pipeline to continue to operate while the Army Corps of Engineers works to finalize its environmental impact statement.”
In court statements, the U.S. Army Corps of Engineers estimated it will take 13 months to complete the court-ordered EIS. The agency would not say on Monday whether it has begun the EIS, or what the process will entail. All such questions were referred to the U.S. Department of Justice, which told the Williston Herald it will have no comment on Boasberg’s order.
Boasberg ruled in March that the U.S. Army Corps of Engineers should have conducted an Environmental Impact Statement before permitting DAPL. NEPA requires the more detailed study when projects are “highly controversial.”
The judge did not decide then whether to vacate the permits, but invited briefs on the matter.
Fourteen states, as well as North Dakota, argued against vacating the pipeline’s permits during the additional study. The lengthier study is unlikely to change the agency’s decision, they wrote, and the shutdown will harm not only the oil and gas sector, but also agriculture and other sectors depending on rail transport.
North Dakota, meanwhile, said a shutdown would be economically catastrophic to the state, particularly now, when its oil and gas industry is already struggling amid a pandemic that has destroyed demand for crude.
Millions in tax revenue will also be lost. The pipeline’s generated $313 million annually in tax revenue for the state, $2.3 million for Williams County, and $1.52 million for McKenzie County.
Boasberg acknowledged these difficulties in his ruling, and rejected the argument, advanced by plaintiffs, that there will be any mitigation in to that pain since a pandemic has already depressed demand for oil.
But, the judge said, he is compelled by the lack of key elements that Standing Rock Sioux and other tribes have sought in an EIS, such as the “unaddressed possibility that DAPL’s leak detection system was incapable of detecting leaks of less than 1 percent of its flow rate, meaning that 6,000 barrels per day could leak without triggering an alarm.”
The lack of study on such items presents an ongoing harm to the plaintiffs that can only be addressed by vacating DAPL’s permits.
“Given the seriousness of the Corps’ NEPA error, the impossibility of a simple fix, the fact that Dakota Access did assume much of its economic risk knowingly, and the potential harm each day the pipeline operates, the Court is forced to conclude the flow of oil must cease,” Boasberg said.