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Judge Orders Dakota Access Pipeline to Shut Down Pending Full Environmental Review

Energy

More than 200 Indigenous Nations demonstrated against the Dakota Access Pipeline in Canon Ball, ND on Sept. 2, 2016. Joe Brusky / Flickr

A federal judge ruled Monday that the controversial Dakota Access pipeline must be shut down and drained of oil until a full environmental review of the project is completed.


The decision is a major victory for the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe, Indian Country Today reported. The Standing Rock Sioux Tribe fears the pipeline will pollute their drinking water and sacred lands if it leaks from where it flows beneath the Missouri River, and the Cheyenne River Indian Reservation sits adjacent to the Standing Rock Sioux and the river.

"Today is a historic day for the Standing Rock Sioux Tribe and the many people who have supported us in the fight against the pipeline," Standing Rock Sioux Tribe Chairman Mike Faith said in a press release from Earthjustice, the group that litigated the case. "This pipeline should have never been built here. We told them that from the beginning."

The ruling is also a major blow to the oil and gas industry and the Trump administration, which has pushed to keep major pipeline projects like the Dakota Access and Keystone XL afloat. It comes less than 24 hours after Dominion and Duke Energy announced they were cancelling their planned Atlantic Coast Pipeline because extensive legal challenges had led to delays and uncertainty. Together, the pipelines' fates bode ill for the future prospects of large-scale energy pipeline projects, Bloomberg pointed out.

"I would expect this to be a turning point for new investment," Katie Bays, co-founder of Washington-based Sandhill Strategy LLC, told Bloomberg. "There is real investor fatigue around this parade of legal and regulatory headwinds to energy projects."

The decision by U.S. District Judge James Boasberg to shut down the pipeline marks the first time that a judge has closed an operating pipeline for environmental reasons, Southern Methodist University energy law professor James W. Coleman told Bloomberg.

"The Court does not reach its decision with blithe disregard for the lives it will affect," Boasberg wrote Monday, as The Associated Press reported. "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."

In its press release, Earthjustice pointed out that a full environmental review could take several years, and then additional permits would have to be issued, meaning the ultimate permitting decision might be made by another administration.

But the pipeline's owner Energy Transfer vowed to challenge Boasberg's decision.

"We believe that the ruling issued this morning from Judge Boasberg is not supported by the law or the facts of the case. Furthermore, we believe that Judge Boasberg has exceeded his authority in ordering the shutdown of the Dakota Access Pipeline, which has been safely operating for more than three years," Energy Transfer spokesperson Lisa Coleman said in a statement to Pipeline & Gas Journal. "We will be immediately pursuing all available legal and administrative processes and are confident that once the law and full record are fully considered Dakota Access Pipeline will not be shut down and that oil will continue to flow."

Earthjustice staff attorney Jan Hasselman, who represented the Standing Rock Sioux Tribe, noted on Twitter that Energy Transfer had already filed an appeal.

The $3.8 billion, 1,172-mile pipeline currently carries 570,000 barrels of oil a day from North Dakota through South Dakota and Iowa to a shipping point in Illinois, according to The Associated Press. It was the subject of high-profile Indigenous-led protests in 2016 and 2017.

In December 2016, the Obama administration and the Army Corps of Engineers denied a key permit for the pipeline, and the Army Corps was set to conduct a full Environmental Impact Statement to seek alternative routes. But when he came into office in January, President Donald Trump sped up the pipeline approval process via executive order and the review was never completed. The pipeline began operating in June 2017, according to The Associated Press, but the Standing Rock Sioux Tribe continued to fight it in court.

Judge Boasberg ordered a full review in late March of this year and asked both the Army Corps and the Standing Rock Sioux to submit briefs explaining why the pipeline should or should not continue to operate while the review was taking place. On Monday, he sided with the tribe.

"I applaud the actions of the US District Court in finding what we knew all along, that this pipeline, like many other actions taken by the US government, is in fact illegally operating," Cheyenne River Sioux Tribal Chairman Harold Frazier said in a statement reported by Indian Country Today. "The fact that this operation had been operating illegally for three years before this conclusion was finally made shows you the power that money holds on the American government."

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