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The Dakota Access pipeline has avoided a shut-down order, and may yet continue to operate during its court-ordered Environmental Impact Statement.

Judge James Boasberg on Friday, May 21, denied a request from the Standing Rock Sioux and Cheyenne River tribes to shut down North Dakota’s largest pipeline because it now lacks the proper federal authorization to cross under Lake Oahe. The judge also denied, without prejudice, a motion from North Dakota that sought to intervene in the case, and he ordered a status update from the parties on June 11.

Dakota Access last year lost a key federal permit that allowed it to cross under Lake Oahe when Boasberg ruled that, because of its controversial nature, NEPA required the U.S. Army Corps of Engineers to complete the longer Environmental Impact Statement instead of the shorter Environmental Assessment.

At the time, Boasberg ordered the pipeline to shut down while the study was conducted and to empty of oil by August.

An appeals court, while upholding cancellation of the permit and further study, said the requirements for an injunction had not been properly considered. They returned that matter to the lower court for further review.

Boasberg said the tribes failed to demonstrate they would suffer actual, irreparable harm if the pipeline continued to operate, as opposed to merely theoretical, potential harm. Clear and imminent, irreparable harm is a key component of the four-factor test for injunctive relief.

Because the first factor was not met, the judge did not consider any of the other three factors, which include a requirement that public interest not be significantly harmed by the injunction. Numerous entities have filed briefs outlining lost revenue in the millions, and lost jobs by the thousands, if the pipeline shuts down. Those entities include North Dakota and the three affiliated tribes, MHA Nation.

“Judges may travel only as far as the law takes them and no further,” Boasberg said, acknowledging the tribes undoubted frustration with his ruling. “Here, the law is clear, and it instructs that the court deny plaintiffs request for an injunction.”

The spill-free operation of Dakota Access’ mainline pipe, and PHMSA data showing that only one horizontally drilled pipeline leaked a total of 1.7 barrels of oil were among factors Boasberg cited in reaching his determination that harm from a pipeline spill in this case is largely theoretical and highly unlikely, especially given that the pipeline is 92 feet below Oahe’s lake bed.

The U.S. Army Corps of Engineers could more easily stop the flow of oil in the pipeline than he can, Boasberg pointed out in his opinion, which also chastised the federal agency for inaction.

“For all the headlines and controversy that this litigation has spawned, its tangible consequences for the pipeline itself have been few,” Boasberg said. “Even though this court vacated the easement for DAPL to cross beneath Lake Oahe, and even though the D.C. Circuit affirmed such vacatur, the pipeline has maintained operations as if none of these developments had occurred.”

The fault for that, Boasberg said, rests with the U.S. Army Corps of Engineers.

“Ever since this court’s vacatur order in July 2020 and across two presidential administrations, the Corps has conspicuously declined to adopt a conclusive position regarding the pipeline’s continued operation, despite repeated prodding from this court and the Court of Appeals to do so,” Boasberg said.

The Corps has had adequate time to make such a decision, Boasberg added.

“Whatever the reason, the practical consequence of the Corps’ stasis on this question of heightened political controversy are manifest: the continued flow of oil through a pipeline that lacks the necessary federal authorization to cross a key waterway of agricultural, industrial, and religious importance to several Indian Tribes,” Boasberg wrote.

Boasberg also acknowledged the “tragic history of the Great Sioux Nation’s repeated dispossessions at the hand of a hungry and expanding early America,” and said he had not reached his conclusion lightly.

“Plaintiffs, no doubt, will wish that the Court’s opinion today had come out differently,” Boasberg said. “Simply by ruing, however, the court has at least given them something the Corps has not: a decision.”

That refusal, Boasberg added, is a “political decision outside the court’s area of inquiry,” one that “actively tolerates DAPL’s continued operation underneath a key federal waterway that it lacks the necessary authorization to traverse.”

“Whether the Corps formally acknowledges such decision or not, this is the outcome it now owns,” Boasberg concluded.

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