Judge sets up ruling on Dakota Access shutdown for late April

By Alex Guillén , Ben Lefebvre 04/09/2021 03:09 PM EDT

A federal judge on Friday said he plans to decide as soon as late April whether to order the Dakota Access pipeline to shut down as it undergoes a new environmental analysis.

Details: Justice Department attorney Ben Schifman on Friday told Judge James Boasberg of the U.S. District Court for the District of Columbia that the Army Corps of Engineers has no plans to use its enforcement authority to order the pipeline to shut down. But he also noted that the agency reserves the right to do so should Dakota Access stop complying with the conditions laid out in the easement that has been faulted by both Boasberg and the D.C. Circuit Court of Appeals.

Jan Hasselman, an Earthjustice attorney representing the Standing Rock Sioux tribe, blasted the Biden administration for not shutting down Dakota Access.

“The company gets to keep the benefits of operating that pipeline that was never properly authorized while the community has to bear the risks and consequences,” he said. “It’s not right. It’s a continuation of a terrible history that we believed was going to change. We’re really disappointed to hear this news from the Army Corps.”

The judge also said he was “a little surprised” that the Biden administration hadn’t decided whether to shut down the pipeline. “I would have thought there would have been a decision one way or the other at this point,” Boasberg said.

The tribes’ shutdown request: Boasberg said that given the Biden administration’s lack of action, he plans to rule on the tribes’ motion to order the pipeline shut down, which has been on hold since it was filed last fall.

Boasberg gave the pipeline operator until April 19 to update its filings with the latest estimates of the economic consequences of closing the pipeline, a key part of the judicial formula Boasberg will use to decide on a shutdown. The tribes will have an opportunity to respond, after which Boasberg said he will rule, leading to a possible decision by late April.

Complicating things is Dakota Access’ plan to seek an en banc rehearing before the full D.C. Circuit of its January ruling. Until that matter is settled, which likely will take several months, the company argued that Boasberg should not act on the tribes’ request for an injunction. Boasberg said he would consider whether the en banc process would prevent him from ruling.

What’s next: Dakota Access has until Monday to file its en banc appeal in the D.C. Circuit. Meanwhile, Schifman, the Justice Department attorney, said the Army Corps tentatively expects to finalize the environmental impact study in March 2022.

Context: The decision comes months after Boasberg ruled that the Corps did not conduct a proper environmental review of the pipeline where it crossed over federal property near Lake Oahe in North Dakota, an area that impacts the water supply for the Standing Rock Sioux and other bands of the Sioux tribe in the area. Boasberg ruled that the Corps had to complete a proper review, with the only question being whether it would order the pipeline to shut down while it did so.

Tribes early in the Biden administration called for the federal government to do just that. Meanwhile, oil industry representatives argued that shutting it down would starve refineries of oil supply and raise fuel prices.

Dakota Access has been a political football for years. The Obama administration denied permits necessary for the project, which brings up to 570,000 barrels a day of oil from the Bakken shale field in North Dakota to refineries in the Midwest. Former President Trump greenlit the permits, but environmental activists and tribes argued that the administration didn’t do its due diligence in reviewing the possible impacts of an oil leak.

Energy Transfer, which owns Dakota Access, also has ties to the previous administration. Kelcy Warren, a Dallas billionaire and prominent Trump ally and Republican campaign donor, was the company’s chief executive until October and is currentlyexecutive chair of the company and its top shareholder. Energy Transfer also hired former Energy Secretary Rick Perry to its board.

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