A federal judge has ordered the shutdown of the Dakota Access Pipeline while a lengthy environmental review is conducted of the project opposed by environmentalists and the Standing Rock Sioux Tribe.
The move was requested earlier this year by Standing Rock and three other Sioux tribes in the Dakotas who fear environmental harm from the oil pipeline and sued over the project four years ago. North Dakota officials have said such a move would have “significant disruptive consequences” for the state, whose oil patch has been hit hard in recent months by falling demand for crude amid the coronavirus pandemic.
Standing Rock Chairman Mike Faith said the tribe is trying to prevent a potential environmental disaster should the line leak.
“For the tribe’s sake, it is good news,” he said of Monday’s ruling. “I think for downstream users, it’s good news also.”
The U.S. Department of Justice, which is representing the Army Corps of Engineers in the lawsuit, had no immediate comment on the ruling, spokeswoman Danielle Nichols said. Pipeline developer Energy Transfer did not immediately comment.
The decision drew criticism from the MAIN Coalition, composed of businesses, trade associations and labor groups that benefit from infrastructure projects.
“Today’s order to shut down Dakota Access jeopardizes our national and energy security and raises significant concerns for the future of American energy infrastructure investment, spokesman Craig Stevens said.
U.S. Sen. Kevin Cramer, R-N.D., said this terrible ruling should be promptly appealed. Cramer is a staunch supporter of President Donald Trump, who just days after taking office in January 2017 green-lighted construction of the pipeline that had become stalled toward the end of the Obama administration.
The $3.8 billion pipeline has been moving Bakken oil to a shipping point in Illinois for three years. But U.S. District Judge James Boasberg, who is overseeing the lawsuit, in March ordered the Corps to complete a full Environmental Impact Statement. The question of whether the pipeline would be shut down in the meantime had lingered since.
An EIS is a much more stringent review than the Environmental Assessment the Corps completed earlier. Such a study is expected to take 13 months, Boasberg wrote in the ruling he issued Monday.
After arguments by both sides and other interested parties, Boasberg revoked a key Corps permit for the pipeline and ordered that Dakota Access shall shut down the pipeline and empty it of oil by August 5, 2020.
The pipeline has been carrying as much as 570,000 barrels of oil out of the Bakken each day -- about 40% of the state`s daily production before the pandemic hit. Boasberg acknowledged that his order will cause significant disruption to DAPL, the North Dakota oil industry, and potentially other states. But he also said the Corps has not been able to substantiate its decision to publish only an EA and not an EIS.
Given the seriousness of the Corps` ... 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, Boasberg wrote.
The judge in 2017 ordered the Corps to revisit several issues pertaining to the easement it granted the pipeline, but he allowed the pipeline to continue operating. The Corps completed the work in August 2018, leading to more legal wrangling when the tribes maintained the additional study was flawed. The company over the years has maintained that the pipeline is safe, a contention backed by the Corps.
The lawsuit has lingered since July 2016. The tribes fear a pipeline spill into the Missouri River -- which the line crosses beneath just to the north of the Standing Rock Reservation -- would contaminate water they rely on for drinking, fishing and religious practices.
Thousands of pipeline opponents from around the world who took up their cause flocked to southern North Dakota in 2016 and 2017 to protest the project. Some clashed with police, resulting in more than 760 arrests.
Faith, the Standing Rock chairman, on Monday said the Corps has not approached the tribe about the EIS. He is calling for “true consultation” that is “face to face.” He said the tribe “is going to do its best to work with the Corps to take a hard look during the EIS process.”
“The bottom line of all this is that the EIS will probably tell us that they should have used a different route in the first place that did not affect Sioux Nation treaty rights,” he said.
The Corps did consider alternate routes for the pipeline’s Missouri River crossing, including one north of Bismarck, but ultimately permitted the pipeline to cross under the water just north of Cannon Ball on the reservation.
The ruling comes as Energy Transfer seeks to nearly double the capacity of the pipeline to carry 1.1 million barrels per day of oil. It has secured permits from regulators in North Dakota and Iowa but still needs to acquire permission from Illinois, where it faces opposition by environmental groups. In North Dakota, the company plans to build a pump station west of Linton in Emmons County to boost the line’s horsepower.
Standing Rock leaders, meanwhile, hope to continue working with state officials and several private companies to conduct a spill response exercise along the Missouri River. The idea came up during a meeting at the state Capitol in December and was endorsed by Gov. Doug Burgum.
“Let’s say it does reopen, we still have to have that plan in place of a quick response team, at least to try to get the oil off the river and off the sides,” Faith said, adding that the tribe still wants to see the pipeline shut down permanently.
Photo: Construction of the Dakota Access Pipeline took place near St. Anthony at this site in 2016. Source: Tom Stromme.