A federal appeals court has ruled that the Dakota Access Pipeline will not have to shut down as the U.S. Army Corps of Engineers does a new environmental impact statement on the project.
A three-judge panels with the U.S. Court of Appeals for Washington, D.C. ruled Tuesday, Jan. 26, that the Corps will have the determine whether the pipeline should get a federal easement and that it didn’t follow the correct procedure when it approved the project in 2017.
“The question presented here is whether the Corps violated the National Environmental Policy Act, 42 U.S.C. § 4321, by issuing that easement without preparing an environmental impact statement despite substantial criticisms from the Tribes and, if so, what should be done about that failure,” Justice David Tatel wrote in an opinion. “We agree with the district court that the Corps acted unlawfully, and we affirm the court’s order vacating the easement while the Corps prepares an environmental impact statement. But we reverse the court’s order to the extent it directed that the pipeline be shut down and emptied of oil.”
A major issue highlighted in the case was the decision in January 2017 to not complete an environmental impact statement, despite an announcement days earlier that the Corps would do so. The Standing Rock Sioux Tribe, which sued in 2016, argued they had raised concerns to the Corps but that those concerns were never addressed.
In the 36-page ruling, the judges raised multiple issues with claims from both the Corps and Dakota Access, including that advanced leak detection and a low risk of any spill making an environmental study unnecessary.
“Doing away with the obligation to prepare an EIS whenever a project presents a low-probability risk of very significant consequences would wall off a vast category of major projects from NEPA’s EIS requirement,” Tatel wrote. “After all, the government is not in the business of approving pipelines, offshore oil wells, nuclear power plants, or spent fuel rod storage facilities that have any material prospect of catastrophic failure. In this case, although the risk of a pipeline leak may be low, that risk is sufficient ‘that a person of ordinary prudence would take it into account in reaching a decision’ to approve the pipeline’s placement, and its potential consequences are therefore properly considered here.”
The appeals court wrote that even though the district court had followed most of the proper procedure, it had not used the proper four-part test to determine whether the shutdown order was the right remedy.
“Although the district court was attuned to the discretion owed the Corps we nonetheless conclude that it could not order the pipeline to be shut down without, as required by (previous cases), making the findings necessary for injunctive relief,” Tatel wrote.
U.S. Sen. Kevin Cramer praised part of the court’s ruling and defended both the pipeline and the process used to approve it.
“The Court of Appeals is right to reaffirm that the original ruling ordering the Dakota Access Pipeline to shut down was wrong,” Cramer said. “The Dakota Access Pipeline was created in full compliance with the direction provided by the Obama Administration, and it’s helped usher in an era of American energy dominance that is unfortunately now under attack. The Army Corps of Engineers should be allowed to proceed as they are without political interference from the Biden Administration. This is not another opportunity to wage war on North Dakota’s energy producers.”
Sen. John Hoeven echoed Cramer’s approval.
“The Dakota Access Pipeline is critical infrastructure for not only North Dakota’s energy industry, but also the American economy and our national security,” he said. “At the same time, pipelines are one of the safest forms of transportation for oil. This project was built and operated in good faith under the Army Corps’ permitting process, and today the Circuit Court was right to reject the shutdown of the pipeline so that it can continue operating.”
U.S. District Judge James Boasberg has set a hearing for Feb. 10 on what action the Corps will take about the pipeline. Because the ruling revoking the line’s permit was upheld, the pipeline no longer has authorization to cross federal land.