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Dakota Access Pipeline’s Fate Again in Court’s Hands

March 18, 2020, 5:09 PM

American Indian tribes on Wednesday renewed their calls for a federal court to halt the embattled Dakota Access pipeline, which has now been pumping oil for nearly three years.

Lawyers for the Standing Rock Sioux Tribe and others appeared by phone in the U.S. District Court for the District of Columbia, squaring off against the Army Corps of Engineers and pipeline developer Energy Transfer Partners LP in the latest round of litigation over the project.

The proceeding is one of few moving forward at the district court in the coming weeks, as hearing schedules have been adjusted to respond to the coronavirus pandemic.

Judge James E. Boasberg has already ordered the Army Corps to take a closer look at the pipeline’s impacts once. The tribes argued Wednesday that the additional court-ordered analysis is still insufficient. They’re calling on the court to toss federal approvals—a move that could take it out of service.

Government and industry lawyers, in turn, urged Boasberg to take a “big picture” approach and find that the updated study adequately addresses the court’s previous concerns.

The judge said he expects to issue a decision rapidly, within about 10 days.

A ruling for the government and Dakota Access would close out district court litigation that’s been inching forward since 2016. A ruling for the tribes would force the Army Corps to go back to the drawing board again to study the pipeline’s impacts.

Case History

The tribes first filed suit in 2016, challenging federal approvals for the pipeline, whose route crosses a dammed section of the Missouri River just a half-mile from the tribe’s reservation in North Dakota.

Tribal members camped out near the site in a demonstration that ultimately swelled to thousands of people and sparked a nationwide debate on both indigenous rights and energy policy. The Obama administration responded by slow-walking a critical permit for the project, but President Donald Trump quickly pushed it through when he took office in 2017.

The tribes scored a partial win the following year when the district court ordered the Army Corps of Engineers to take a closer look at the project’s impacts. Still, pipeline construction was allowed to proceed, and Dakota Access can now move more than a half-million barrels of crude per day from North Dakota shale formations to an oil hub in Illinois.

The tribes now say the Army Corps’ court-ordered supplemental analysis also fell short of requirements under the National Environmental Policy Act. They’re asking the court to require the agency to do a more in-depth study and scrap permits in the meantime.

Arguments

During Wednesday’s hearing, Boasberg centered on how recent appellate court precedent affects the Dakota Access litigation.

The U.S. Court of Appeals for the District of Columbia Circuit in 2019 ruled the Army Corps violated the National Environmental Policy Act by conducting an environmental assessment rather than a more in-depth environmental impact statement (EIS) to study an electric transmission project, despite concerns raised by another federal agency.

NEPA regulations require agencies to consider whether a proposal’s impacts are “highly controversial” when deciding whether to do an EIS.

Boasberg ticked through objections the pipeline challengers raised about issues unaddressed by the oil spill risk analysis the government used for Dakota Access. He pressed the government to explain, for example, why it didn’t study the risks of a slow leak, which has occurred on other Energy Transfer Partners pipelines.

‘Some Level of Deference’

Justice Department lawyer Reuben S. Schifman, representing the Army Corps, responded that the agency made a reasonable choice, “given the safeguards” in place, to focus on other risks.

“There has to be some level of deference to the agency that is doing that line-drawing,” he said.

He also distinguished the Dakota Access dispute from the D.C. Circuit’s 2019 ruling on the transmission line, which focused on disagreement from other agencies about the project’s impacts. Here, he said, objections to the oil spill analysis came from the tribes, not other agencies.

Lawyers for the tribes countered that several federal experts did raise concerns throughout the pipeline approval process, and that the tribal experts’ technical complaints deserved consideration as the Army Corps decided whether the impacts were “highly controversial” and triggered an in-depth EIS.

Gibson, Dunn & Crutcher LLP attorney David Debold, representing Dakota Access, defended the oil spill risk analysis for the pipeline, noting that sensors can quickly detect changes in pressure and activate shutoff valves if needed.

Those reassurances are inconsistent with “real world” examples of leaks that have gone undetected for weeks or longer, Earthjustice lawyer Jan Hasselman, representing Standing Rock, responded.

Cheyenne River Sioux lawyer Nicole E. Ducheneaux, of Big Fire Law & Policy Group LLP, added that the government has a “powerful obligation” to rigorously study potential impacts to the tribes.

“This matter has been controversial since Day One,” she said.

Litigating During the Pandemic

Boasberg presided over a mostly empty courtroom, having directed lawyers in the case to participate by phone due to the coronavirus pandemic.

The teleconferenced hearing contrasted sharply with early Dakota Access proceedings, when pipeline opponents, tribal advocates, and even celebrities would routinely pack the courtroom and sometimes protest outside.

Lawyers for the Standing Rock Sioux, Cheyenne River Sioux, and other tribes in the lawsuit urged Boasberg to consider providing an audio livestream of Wednesday’s hearing to serve strong public interest in the case.

Boasberg said he’d look into it but ultimately didn’t provide a livestream option. The courtroom was open only to court staff and reporters. A clerk noted that members of the public can purchase a transcript of the hearing once it’s available.

The case is Standing Rock Sioux Tribe v. Army Corps of Engineers, D.D.C., No. 1:16-cv-01534, hearing 3/18/20.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com

To contact the editor responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com

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