Federal Court Orders New EIS For Dakota Access Pipeline

DAPL pipeline graphic
DAPL pipeline graphic

A federal judge ruled this week the Army Corps of Engineers’ analysis for the Dakota Access Pipeline (DAPL) in North Dakota was inadequate, ordering the agency to reexamine and issue an updated environmental impact statement.

The request by the Standing Rock Sioux Tribe to revoke federal permits issued in 2016 under the National Environmental Policy Act claimed the Corps violated the law and did not address potential impacts from an oil spill by the pipeline.

Judge James E. Boasberg determined that “the amount of unresolved scientific controversy that remains . . . suffices to show the necessity of an EIS.”

“Unrebutted expert critiques regarding leak-detection systems, operator safety records, adverse conditions, and worst-case discharge mean that the easement approval remains ‘highly controversial’ under NEPA.

As the Court thus cannot find that the Corps has adequately discharged its duties under that statute, it will remand the matter to the agency to prepare an Environmental Impact Statement,” the judge wrote.

“The Corps must prepare an EIS, but what is the status of the easement — and, ultimately, the oil — in the meantime?

As it has done before in this case, the Court will order the parties to brief the issue of whether the easement should be vacated during the remand,” he ordered, referring to the agency’s decision not to prepare an environment impact statement years earlier.

“In February 2017, Defendant U.S. Army Corps of Engineers concluded that granting an easement for the crossing would yield no significant environmental impact, thus exempting the agency from having to prepare an Environmental Impact Statement under the requirements of the National Environmental Policy Act,” Boasberg wrote. Previous Court analysis had found that “not to issue an EIS largely complied with NEPA.”

The Standing Rock Sioux Tribe hailed the court’s decision this week.

“After years of commitment to defending our water and earth, we welcome this news of a significant legal win,” said Standing Rock Sioux Tribe Chairman Mike Faith.

The pipeline, built by Energy Transfer Partners, has been in operation since 2017. The court’s order for additional briefs from all parties on the easement issue—the actual flow of oil—will not halt the pipeline’s operation for the time being.

Anti-oil and gas groups like Natural Resource Defense Council called the ruling a “major development.” Extinction Rebellion, casting the battle in light of current COVID-19 news, said it was “Some good news in these difficult times!”

In Pennsylvania, Energy Transfer Partners received a waiver to finish work on its Mariner East 2 pipeline from Gov. Tom Wolf (D).

The waiver comes as the state classified business and other economic activities as “life sustaining” or not.

For Pennsylvania, shale gas production and coal mining have been deemed “essential.”

In other states, such as California, “[c]rude oil storage facilities, pipeline, and marine transport” have been designated “essential” during the COVID-19 crisis.

The U.S. Army Corps of Engineers “has jurisdiction over a very small portion of the total pipeline project—approximately 37 miles of the pipeline’s 1,168 total miles.

However, these 37 miles encompass 202 jurisdictional water crossings, which USACE was required to review and complete each as a single project.”

“USACE is charged with supporting economic development and ensuring measures exist to minimize impacts to the environment and the authorized purposes for which the Missouri River Reservoirs are operated.

To this end, USACE seeks to support energy development in accordance with EO 13604 in an environmentally sound manner,” the Corps posted on its DAPL project website.

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