Dakota Access operations can continue but studies needed

Feb. 8, 2021

A federal appeals court has ruled the US Army Corps of Engineers must complete more environmental analyses for the Dakota Access crude oil pipeline but does not have to shut down as ordered last year by a district court.

The ruling Jan. 26 by the US Court of Appeals for the District of Columbia Circuit concluded that the Corps of Engineers had not done enough to address the objections of Native American plaintiffs opposed to a pipeline crossing under the Missouri River in North Dakota.

The district court in March 2020 ordered the Corps to conduct a lengthy environmental impact statement (EIS) rather than a relatively shorter environmental assessment for the river crossing easement. A few months later the district court also vacated the easement and ordered the pipeline be shut down, but the appeals court blocked the shutdown (OGJ Online, Aug. 6, 2020).

In its latest decision, the court reaffirmed its earlier conclusion that the district court failed to make the necessary findings to support its shutdown order. But the court accepted the lower court’s conclusions on the inadequacy of the environmental assessment and the need for vacatur of the easement.

The appeals court ruling was based on the National Environmental Policy Act (NEPA) and regulatory guidance issued to agencies by the Council on Environmental Quality (CEQ) for administration of the act. Specifically, the court relied on a guidance saying an EIS is needed if “controversies” remain unresolved—leaving unclear the question of whose opinion should be relied upon to determine that a controversy has been resolved.

In this case, the court has decided to substitute its own opinion for that of the Corps.

The case is Standing Rock Sioux Tribe v. US Army Corps of Engineers. Energy Transfer LP operates the line through its unit Dakota Access LLC. The line, in operation for 3 years, carries 570,000 b/d of crude oil more than 1,100 miles from North Dakota to a pipeline hub at Patoka, Ill. Connections there take the oil as far as the Gulf Coast.

More decisions to come

The Corps got to work on the court-mandated EIS in September 2020. An EIS can easily take a year and then can be challenged in court.

It remains to be seen how the Corps will formally respond to the vacatur of the easement for the river crossing. The Corps could issue an explanation detailing why it does not see a need to shut down the line while it conducts an EIS.

But control of the White House has changed since the district court vacated the easement, and it is at least possible that the Corps, under new political guidance, could conclude that the termination of the easement requires a shutdown until the EIS is completed. President Biden already has shown a willingness to block oil infrastructure.

The appeals court left the matter pending before the Corps. In its ruling, it said “how and on what terms” the Corps will respond to the loss of the easement is a matter for the Corps to consider, “though we would expect it to decide promptly.”

It also is possible that an EIS completed under Biden political appointees could conclude that the environmental risks of the river crossing outweigh the benefits of the line, and that a new easement should not be issued—another way to reach a shutdown decision, but by the Corps rather than a court.