Tribes have not met 'high bar' for Dakota Access Pipeline shutdown, Corps says (copy)

The Dakota Access Pipeline crosses under the Missouri River from Morton County into Emmons County at this site near the power lines. To the south lies the community of Cannon Ball on the Standing Rock Sioux Reservation.

The U.S. Army Corps of Engineers on Monday, May 3 said its opposition to an injunction forcing Dakota Access to shut down still stands, and that plaintiffs have not met applicable standards for such an order.

“This question now rests in the ‘sound discretion’ of the Court,” the federal agency said in court documents it filed Monday.

The agency also does not now know of any particular factors that would change its mind — but it reserved the right to change its mind if something new and relevant is discovered as part of the EIS process.

The Corps also reiterated that it does not plan to be finished with the court-ordered Environmental Impact Study until March 2022. That time will be needed to conduct an open, transparent, and public EIS, the federal agency said.

“Further the Corps is committed to robust tribal consultations and to actively engaging with the cooperating agencies, which include several Plaintiff Tribes, to produce a thorough and comprehensive EIS.”

Meanwhile, the Standing Rock Sioux and Cheyenne River Sioux tribes opposed North Dakota’s motion to intervene.

For one, the motion is not timely, the tribes said, and for another, Dakota Access has zealously defended the pipeline and will continue to do so, while the state may continue to participate, if necessary, as amicus curiae.

“(North Dakota) may have some divergent interests,” the tribes’ attorney wrote, but “In terms of defending continued operation of Dakota Access, they are in lockstep.”

Dakota Access is also pursuing a review of the case by the Supreme Court. In its filing outlining its arguments for review, it said the court had based its decision to order an EIS on information that post-dated the completion of a remand requiring the Corps to consider three discrete issues, and heightened the standard of review. That conflicts with decisions by the Supreme Court and other Circuits, DAPL said.

It also runs the risk of giving a “heckler’s veto” to infrastructure projects like pipelines in the future.

“It is up to ‘agencies’ — not courts — to ‘determine whether’ to prepare an EIS ‘based on the usefulness of any new potential information,’” DAPL said, citing other case law, and the “‘review of agency decisions based on multi-factor balancing tests’ is ‘quite limited,’ leaving no room for courts to substitute the balance [they] would strike for that the agency reached.’”

Load comments