Judge orders Dakota Access pipeline shut down pending environmental review
Des Moines Register – July 6, 2020
by Donnelle Eller
FARGO, N.D. — A federal judge on Monday ordered the Dakota Access pipeline shut down pending a more thorough environmental review, handing a victory to the Standing Rock Sioux Tribe three years after the pipeline first began carrying oil following months of protests.
In a 24-page order, U.S. District Judge James Boasberg wrote that he was “mindful of the disruption” that shutting down the pipeline would cause, but that it must be done within 30 days. The order comes after Boesberg said in April that a more extensive review was necessary than what the U.S. Army Corps of Engineers had already conducted and that he would consider whether the pipeline would have to be shuttered during the new assessment.
“The Court does not reach its decision with blithe disregard for the lives it will affect,” Boasberg wrote Monday.
“Yet, given the seriousness of the Corps’ NEPA (National Environmental Policy Act) error, the impossibility of a simple fix, the fact that Dakota Access did assume much of its economic risk knowingly, and the potential harm each day the pipeline operates, the Court is forced to conclude that the flow of oil must cease,” he added.
The pipeline was the subject of months of protests in 2016 and 2017, sometimes violent, during its construction near the Standing Rock Sioux Reservation that straddles the North Dakota-South Dakota border. The tribe pressed litigation against the pipeline even after it began carrying oil from North Dakota across South Dakota and Iowa and to a shipping point in Illinois in June 2017.
Tribal Chairman Mike Faith called it a historic day for the Standing Rock Sioux and for those who have protested against the $3.8 billion, 1,172-mile pipeline that crosses beneath the Missouri River, just north of the reservation. The tribe draws its water from the river and fears pollution.
“This pipeline should have never been built here. We told them that from the beginning,” Faith said in a statement.
Texas-based Energy Transfer has insisted the pipeline it owns would be safe. It didn’t immediately respond to a message seeking comment on Boasberg’s ruling.
Jan Hasselman, an attorney for the tribe, praised the court’s ruling, while noting he expects an appeal.
“It doesn’t make any sense to allow the pipeline to continue operating when you’re studying whether it’s safe to operate,” he said.
Ron Ness, president of the North Dakota Petroleum Council, called the ruling “shocking” and noted that the pipeline is moving 570,000 barrels of Bakken oil a day. He also expects an appeal.
“I think there’s a lot of questions about the authority of this liberal district court judge to make such a significant ruling,” Ness said of Boasberg, who was appointed by former President Barack Obama.
Energy Transfer last year proposed increasing the pipeline’s capacity to as much as 1.1 million barrels to meet growing demand for oil from North Dakota, without the need for additional pipelines or rail shipments.
Iowa pipeline opponents cheered the ruling.
“So many tried to stop this pipeline. Today is a big victory,” said Ed Fallon, founder of Bold Iowa, a group of about 250 people who opposed the project.
The pipeline cuts diagonally across Iowa through 18 counties, sparking opposition from environmentalists, farmers and landowners.
Pam Mackey-Taylor, director of the Sierra Club’s Iowa chapter, said officials failed to properly assess the pipeline’s impact on “Iowa’s endangered and threatened species, Iowa’s archaeological resources, and the risks to Iowa’s water and soils from leaks and pipeline breaks.”
“Everyone fighting the pipeline knew all along the environmental review was never completed properly and that more needed to be done,” said Adam Mason, an organizer for Iowa Citizens for Community Improvement.
Fallon said a new environmental review needs to include the pipeline’s impact on climate change.
“We can’t have continued expansion of the fossil fuel infrastructure,” said Fallon, who walked the entire pipeline path in opposition to the project. “Without the pipeline, oil isn’t going to be extracted. Without the pipeline, oil isn’t going to be burned and the carbon won’t find its way to the atmosphere.”
In March, the Iowa Utilities Board agreed to allow Energy Transfer to double the amount of oil that could flow through the pipeline to 1.1 million gallons daily.
A group that supports energy development criticized the ruling, saying it jeopardizes national security.
“Despite its safe operation and having received the necessary permits and approval from both state and federal regulators, Judge Boasberg has decided to side with environmental activists to shut in our nation’s critical natural resources,” said Craig Stevens, spokesman for the GAIN (Grow America’s Infrastructure Now) Coalition.
“A robust energy infrastructure network is the lynchpin to our nation’s energy and economic success,” and Dakota Access “is a key component of that growing network,” Stevens said in a statement.
While expecting Energy Transfer to appeal the ruling, Fallon said he hopes the new review will prompt Iowa utility board members to reconsider the pipeline’s approval and expansion.
Mason said he believes the added environmental scrutiny could close the pipeline permanently. “We want to see it shut down for good,” he said.
Before the coronavirus pandemic devastated the U.S. oil industry, daily oil production in North Dakota — the nation’s No. 2 oil producer behind Texas — was at a near-record 1.45 million barrels daily. The state’s output slipped to below 1 million barrels daily in May amid low energy prices and sparse demand.
Permits for the project were originally rejected by the Obama administration, and the Army Corps of Engineers prepared to conduct a full environmental review. In February 2017, shortly after President Donald Trump took office, the Corps scrapped the review and granted permits, concluding that running the pipeline under the Missouri River posed no significant environmental issues.
The Corps said that opinion was validated after an additional year of review, as ordered by Boasberg in 2017.
Boasberg had ruled then that the Corps “largely complied” with environmental law when permitting the pipeline but ordered more review because he said the agency did not adequately consider how an oil spill under the Missouri River might affect the Standing Rock Sioux’s fishing and hunting rights, or whether it might disproportionately affect the tribal community.