Hearing will address what happens to DAPL after judge’s ruling

By Patrick C. Miller | June 19, 2017

A Wednesday hearing in the U.S. District Court for the District of Columbia is expected to determine what happens next in the ongoing legal battle over the Dakota Access Pipeline (DAPL), which went into service June 1.

Last week, federal Judge James Boasberg issued a ruling which said the U.S. Army Corps of Engineers failed to address tribal environmental justice and treaty rights requirements when it approved an easement allowing DAPL to cross the Missouri River about a half mile north of the Standing Rock Sioux Reservation in south central North Dakota. However, he stopped short of halting pipeline operations and also upheld the Trump administration’s decision to drop plans for a full environmental impact statement (EIS).

The $3.8 billion, 1,172-mile-long pipeline was built by Dallas-based Energy Transfer Partners. It transports 520,000 barrels per day of Bakken crude from western North Dakota to a hub in Patoka, Illinois, where is can reach markets on the Gulf and East coasts.

According to Earth Justice—the environmental group representing the Standing Rock and Cheyenne River Sioux tribes in a lawsuit against the Corps—the Wednesday status hearing will determine how the court proceeds, including whether the pipeline will be shut down while the Corps complies with the court’s opinion.

Boasberg said that while the Corps didn’t completely ignore the consequences of a potential oil spill on the tribes’ water supply, it didn’t address the consequences of a spill on tribal hunting and fishing resources covered under the tribes’ treaty rights. The judge also said that the Corps didn’t consider Council on Environmental Quality regulations that require the agency fully scrutinize a project that’s likely to be highly controversial.

Although Earth Justice and the two Sioux tribes sought to portray Boasberg’s ruling as a major victory, Craig Stevens, a spokesperson for Grow America’s Infrastructure Now (GAIN), pointed out that the judge “disposed of nearly all of the tribes’ claims and the handful that remain do nothing to impact the ongoing operation of the pipeline.”

Stevens also said there’s “little doubt that the Corps will ultimately be successful in satisfying the court’s concerns” and that the decision “continues the public saga of the project and jeopardizes ongoing infrastructure investment.”

In his ruling, Boasberg called the Corps’ assessment of a potential DAPL spill “largely adequate,” but said it “fell short as to fishing rights, hunting rights, and environmental justice.” He ordered the Corps to submit its assessment of those impacts before deciding whether it was necessary to vacate the permits issued by the Corps or shut down DAPL. Boasberg also said he would evaluate “any disruptive consequences that would result given the current stage of the pipeline’s operation.”

Jan Hasselman, Earth Justice attorney, said the Corps might revise or update its environmental assessment (EA) and again conclude that an EIS isn’t required for the DAPL crossing of the Missouri River.

“If that happens, additional legal challenges are likely,” he said. “The tribe believes this court decision should trigger a full EIS, including consideration of route alternatives, just as the Obama administration proposed in December.”

However, Boasberg sided with the Corps’ decision to use the Missouri River crossing site near Standing Rock rather than an alternative site considered 10 miles north of Bismarck, North Dakota. He noted that the northern site would have required another 11 miles of pipeline, a power line crossing, 11 additional flood plain crossings and 27 more transportation crossings, as well as a route that passed near several protected wellhead water sources and other high-consequence populated areas.  

“And finally, the Bismarck alternative would have cost nearly $33 million more and been co-located with other pipelines or utility corridors for only 3 percent of the route as compared to the selected route’s 41 percent,” the judge wrote.

Boasberg questioned the Corps’ decision to limit the area for its environmental assessment to a half-mile radius around the DAPL river crossing construction site when the impacts of a spill could extend downstream to the reservations, noting that the border of the Standing Rock Sioux Reservation is .55 miles from the site.

“The court is hard pressed to conclude that the Corps’ selection of a 0.5-mile buffer was reasonable,” Boasberg wrote. “DAPL is neither a transportation project nor a natural-gas pipeline; it is a crude-oil pipeline. The EA does not identify any project involving a crude-oil pipeline for which a 0.5-mile buffer was employed.”