Dakota Access has filed a case with the Supreme Court in the pipeline case, asking it to reverse a lower court decision that requires a more thorough review of the pipeline due to its controversial nature.
Last year, Judge James Boasberg ruled that the U.S. Army Corps of Engineers erred in judgment when it chose to do an Environmental Assessment instead of the more thorough Environmental Impact Statement due to the controversial nature of the pipeline. As a result of that ruling, Boasberg vacated the pipeline’s federal permit to cross 90 feet under Lake Oahe, which technically means Dakota Access is operating without a legal permit — although the Corps has so far declined to take any enforcement action to block the pipeline’s operation.
In its filing to the Supreme Court, Dakota Access argued that requiring an agency to resolve all criticisms of a federal agency’s environmental analysis before concluding a project doesn’t need a more thorough environmental review reverses three decades of prior case law for the National Environmental Policy Act.
The new standard would also shift power from agencies to courts, Energy Transfer said in its petition, and creates enormous new implications for large projects in general and the nation as a whole.
Allowing the ruling to stand forces large projects in general to complete the more lengthy and expensive EIS regardless of whether it is really needed. Otherwise, they will face the possibility of being shutdown at any time after the fact.
It is not known what the chances are that the case will be taken up by the Supreme Court, which takes only a fraction of cases each year.
Energy Transfer’s Supreme Court filing last week follows years of legal battles over North Dakota’s largest crude oil pipeline, which can take up to 750,000 barrels of Bakken crude oil per day to the Gulf Coast, or two-thirds of the state’s total.
The 1,12-mile pipeline began operating in 2017, amid ongoing protests that attracted people from across the nation and around the globe.
Work on the court-ordered EIS is ongoing. The timeline for the environmental study was recently extended six months to September 2022 to allow more time for public comments.
That review is expected to include Dakota Access pipeline’s recent expansion project, which added an additional 180,000 barrels per day of capacity to the line.
Boasberg dismissed a suit that had sought to force the pipeline to shut down while the EIS is completed, saying the tribe had failed to show there was an actual present danger from allowing the pipeline to continue operating. He has left the door open, however, for additional lawsuits once the environmental study is complete.