Dakota Access has lost its bid for an appeal of a decision that vacated their permits last year and required more environmental study of the crossing 90 feet under Lake Oahe.
That means things are still on track for a second shutdown showdown.
The DC Circuit Court of Appeals on Friday declined to reconsider its decision upholding a lower court decision that vacated permits for Dakota Access and required the Corps to conduct additional environmental study due to the pipeline’s controversial nature.
The appeals court’s order denying DAPL’s appeal offers little insight into the court’s reasoning.
“Upon consideration of Dakota Access, LLC’s petition for rehearing en banc, and the absence of a request by any member of the court for a vote, it is ordered that the petition be denied,” is all that the one-page order says.
The order did note that two of the 11-member panel did not participate, Circuit judges Cornelia Pillard and Gregory Katsas.
The decision leaves Dakota Access with dwindling options for appeal — the Supreme Court, which does not always take such cases up. This sets the stage for a second hearing into the shutdown question, which has already been proceeding concurrently with the appeals process.
Dakota Access filed an updated estimate of economic harm caused by a shutdown in Boasberg’s court on that question Monday. The statement is a key metric Boasberg will have to consider in his decision, and it now includes the sworn testimony of MHA Nation’s Chairman Mark Fox, who said his tribe would lose $160 million in a one-year period and $250 million in a two-year period if the pipeline shuts down. That money is used to support a wide variety of programs and infrastructure on the reservation ranging from schools and law enforcement to transportation and health care.
Fox has also sent a letter to the U.S. Army Corps of Engineers seeking one-on-one consultation on the pipeline’s continuity, in which he states that Dakota Access carries more than 60 percent of the Fort Berthold Reservation’s oil to market.
A response to DAPL’s updated estimate are expected Monday from the Standing Rock Sioux and other parties opposing the pipeline, which will be another key metric in Boasberg’s consideration.
North Dakota on Monday also filed a motion to intervene in the case, saying that the U.S. Army Corps of Engineers has abandoned its leadership role and no longer adequately represents the interests of the state.
The motion followed a status report earlier this month in which the Biden administration said oil could continue to flow on the Dakota Access pipeline. That irked environmental and tribal groups, who had pressed the President to take direct action to shut the pipeline down.
North Dakota, however, was also irked that the Corps didn’t take a strong stand defending their permit, and indicated its defense of the permit might not be as vigorous as before. The federal agency also said it is constantly evaluating the situation and could at any time change its position.
North Dakota in its motion to intervene said it has a vital interest in defending its permitting processes, which were responsible for 358 miles of the Dakota Access pipeline’s 1,172-mile route. The Corps is responsible for just the 1.73 mile crossing 90 feet below Lake Oahe.
State law requires North Dakota to evaluate alternative routes and select the route that poses the least impact to people, cultural resources, and the environment, Attorney General Wayne Stenehjem pointed out in the motion. As part of that, public hearings were held, and timely opportunities were available to legally challenge the PSC’s siting of the pipeline route before its construction.
Dakota Access began operation in 2017, not long after the U.S. Army Corps of Engineers approved its Lake Oahe crossing permit. It now carries about 400,000 barrels of oil per day out of the Bakken to Illinois. From there, it can access various markets, including the Gulf Coast. It is so far spill-free, state and company officials have said.
Standing Rock, meanwhile, has said it opposes the pipeline because it’s worried about the risk of an oil spill into the river. That could affect hunting and fishing treaty rights, the tribe says.
The river is also the source of water for the tribe. The intake for that, however, was actually moved 70 miles downstream to Mobridge, South Dakota in 2018. It’s now 14 hours downstream from the Lake Oahe crossing, which state officials have said greatly reduces any risk to the tribe’s water supply.