The future of the Dakota Access Pipeline is still not certain as the legal efforts to shut it down continue, but for now U.S. District Judge James Boasberg’s decision issued late last week allows the 570,000 barrels of oil a day through the pipeline to operate while an environmental review takes place.
Boasberg, a Barack Obama appointee, said in his ruling that the charges made in the lawsuit, filed by numerous Native American tribes, including the main plaintiff the Standing Rock Sioux tribe, failed to explain why it would suffer “irreparable harm” which is an essential element for a court to issue a permanent injunction to shutter the pipeline.
Boasberg’s ruling makes it clear that he did it reluctantly — he earlier ruled to shut down the pipeline — and blamed the U.S. Army Corps of Engineers, now under the control of the Biden administration, for failing to do its part.
“Just like the Dakota Access Pipeline, which meanders over hill and dale before carrying its crude oil underneath Lake Oahe — a large reservoir on the Missouri River between North and South Dakota — the current litigation has wound its way through myriad twists and turns,” Boasberg wrote, before continuing:
Last year, in a hard-earned victory for the American Indian Tribe Plaintiffs whose reservations lie nearby, this Court found that Defendant U.S. Army Corps of Engineers had violated federal law by failing to produce an Environmental Impact Statement [EIS] before granting Defendant-Intervenor Dakota Access, LLP an easement to run the pipeline under Lake Oahe. The Court subsequently vacated that easement and ordered the pipeline emptied of oil until the Corps could complete the federally mandated EIS.
“Wasting no time, both Dakota Access and the Government promptly appealed to the D.C. Circuit,” he wrote. “In a partial win for the Tribes, the Court of Appeals affirmed the two central elements of this Court’s rulings — specifically, that the Corps should have prepared an EIS and that the easement was properly vacated in the interim. The Circuit thus confirmed that the pipeline was, in legal speak, an unlawful encroachment on federal land.”
“It was there, however, that the Tribes ran out of luck,” Boasberg wrote. “Prior to the cessation of any oil flow, the Circuit stayed and eventually reversed the aspect of this Court’s order shutting down the pipeline, reasoning that it had not made the necessary findings for what was essentially injunctive relief.”
“For that to occur, the Court of Appeals clarified, this Court needed to conduct an additional, distinct inquiry, a component of which requires the Tribes to demonstrate that — among other things — they will likely suffer irreparable harm in the absence of an order closing the pipeline,” he wrote.
“Those seeking an explanation for the persistence of this surprising state of affairs over the past ten-odd months need look no further than the Defendant in this case: the Corps,” Boasberg wrote, and continued:
Ever since this Court’s vacatur order in July 2020, and across two presidential administrations, the Corps has conspicuously declined to adopt a conclusive position regarding the pipeline’s continued operation, despite repeated prodding from this Court and the Court of Appeals to do so. On the one hand, the agency has refrained from exercising its enforcement powers to halt Dakota Access’s use of the pipeline, notwithstanding its status as an unlawful encroachment. At the same time, however, neither has the Corps affirmatively authorized the pipeline’s occupation of the area underneath Lake Oahe per the process contemplated in its internal procedures. Its chosen course has instead been — and continues to be — one of inaction.
Boasberg said that the plaintiffs are seeking from the courts what the government could do: shut down the pipeline.
“The Court acknowledges the Tribes’ plight, as well as their understandable frustration with a political process in which they all too often seem to come up just short,” he wrote. “If they are to win their desired relief, however, it must come from that process, as judges may travel only as far as the law takes them and no further. Here, the law is clear, and it instructs that the Court deny Plaintiffs’ request for an injunction.”
S&P Global reported on the development:
“That was essentially Biden’s chance to exert some influence and he didn’t take it,” Ajay Bakshani, analyst for East Daley Capital, told S&P Global Platts May 24. “It’s definitely positive for the Bakken.”
The end result is DAPL will keep operating — with plans to expand capacity by the end of the year — although a negative Environmental Impact Statement from the Army Corps next year could again threaten DAPL’s viability. The DAPL case was closely watched by industry and environmental observers alike because it could potentially set a standard for attempting to close existing pipelines and other fossil fuel infrastructure. Now, drilling activity should ramp again with the removal of much of the legal uncertainty, according to S&P Global Platts Analytics.
Platts Analytics expects Bakken crude and condensate production to rise from 1.1 million b/d in May to 1.34 million b/d by the end of 2022.
“We are pleased the court correctly recognized that the continued operation of the Dakota Access pipeline presents no risk of harm to others and appropriately denied the efforts to shut down this vitally important pipeline,” Energy Transfer, which runs the pipeline, said in a statement published in a Bismark Tribune report:
North Dakota’s top oil lobbyist called Boasberg’s ruling “fantastic” after hearing the news Friday, adding that “common sense prevails.”
“The pipeline has been operating safely and efficiently for almost four years,” North Dakota Petroleum Council President Ron Ness said. “It’s obviously great news for North Dakotans, it’s great news for operators, it’s great news for Fort Berthold and their economy, and it’s great news for the country, frankly. It’s a critical piece of American infrastructure.”
“In a nation of laws there is still no justice for Standing Rock,” Chairman Mike Faith said in a statement. “We are disappointed that the powers that be have failed in their proclaimed commitment to environmental justice and ensuring the sanctity of our resources, especially our water.”
The case is Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers No. 1:16-cv-01534-JEB in the U.S. District Court for the District of Columbia.
Follow Penny Starr on Twitter or send news tips to pstarr@breitbart.com
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