The Fuse

Biden Takes No Action on Dakota Access. The Story is Not Over.

by Nick Cunningham | April 13, 2021

The Biden administration declined to make a decision on the Dakota Access pipeline in an appearance in federal court on April 9, disappointing the Standing Rock Indian Reservation, Indigenous allies and environmental groups that had hoped the pipeline would be shut down.

However, the issue is far from over. The judge said that the court could instead take action on the pipeline a few days from now, although there is little clarity on what happens next.

Court flummoxed by Army Corps

In March 2020, the U.S. District Court for the District of Columbia shot down a key permit issued by the Army Corps of Engineers in the early days of the Trump administration, which paved the way for the construction of the Dakota Access pipeline. The judge said the Corps did not adequately study how an oil spill would affect Standing Rock’s access to clean water when it granted an easement under Lake Oahe. The pipeline carries 570,000 barrels of oil per day (b/d) from North Dakota to Illinois.

The court initially ordered the pipeline to be shut down and drained, but an appeals court allowed it to remain online while litigation played out. Still, the decision meant that the pipeline has been operating for roughly a year without necessary permitting. The Army Corps was ordered to conduct a more thorough environmental review and come back to federal court to explain the next steps.

In the first few days of the new Biden administration, the Army Corps asked for a delay so that the new leadership could get up to speed on the particulars. The judge approved that request, pushing off a scheduled February 2021 hearing by 60 days.

At the highly-anticipated April 9 hearing, the Army Corps was expected to show up and explain why or how it would conduct a more comprehensive environmental review, why the pipeline should remain online, or – as pipeline opponents hoped – why the pipeline would be shut down. Instead, a lawyer for the Army Corps appeared in court and essentially offered no new information, stunning the plaintiffs, the pipeline company, as well as the judge.

The Corp’s attorney Ben Schifman suggested that the government did not have any scheduled plans to act one way or the other, but could act at some later date, and that the Corps would continue “evaluating” the pipeline, a rather vague assertion that left the judge at a loss.

“The decision here today is to keep operating, which is the same decision as the previous administration,” Earthjustice attorney Jan Hasselman, representing Standing Rock, said during the hearing. “The company gets to keep the benefits of operating the pipeline that was never properly authorized while the community has to bear the risks and the consequences.”

“I too am a little surprised that this is where things stand 60 days later,” U.S. District Judge James Boasberg said. “I would have thought there would be a decision one way or another at this point.”

For its part, the Dakota Access pipeline, owned by Energy Transfer, requested two additional weeks so that it could submit more information about why energy markets have changed since last year, which would presumably detail the high costs of shutting down the pipeline. Judge Boasberg gave the company 10 days (April 19), after which the Tribes would have a chance to respond.

What happens next?

At the risk of reading too much into the Army Corps’ posture, there appear to be some subtleties worth noting. The Corps said it wouldn’t appeal last year’s court decision ordering a more formal environmental impact statement (EIS). That process now has to go ahead. In addition, the Corps also said it didn’t have a problem if the judge decided to take action on the Tribe’s request for an injunction (shutting down the pipeline) before the completion of that EIS.

Perhaps those nuances aren’t that significant, but it raises questions about whether the administration’s appearance in court on April 9 amounts to simultaneously not wanting to shut down the pipeline over fears of political blowback from the industry and its allies, but at the same time signaling that it would not stand in the way of a shutdown so long as the court made that decision on its own.

That outcome remains a possibility. Judge Boasberg said that given the inaction by the Corps, it is now up to him to decide on the Tribe’s request to shut the pipeline down. Dakota Access will file new information by April 19, after which the Tribes could get some time to respond. At some point, the judge could make a decision to temporarily shut down the pipeline, or not. Either way, appeals will likely mean that litigation drags on.

“[L]egal machinations may allow the pipeline to remain in service for at least several more months, and potentially even until the EIS and [Record of Decision] are completed and the easement under the Mineral Leasing Act for Lake Oahe is reissued” in March 2022, ClearView Energy Partners wrote in a note, referring to the deadline that the Corps has to conduct its environmental review. “This scenario is – in our view – most likely if the Tribes’ injunction request fails.”

Still, the Tribes do have some recourse, ClearView noted. The legal specifics are complex, but the Tribes have some options, although nobody knows how courts will handle a pipeline that is already online but is operating without the necessary approvals.

“The fundamental question remains the same as it has been since the Tribes filed their original injunction motion in October: are the Tribes irreparably harmed by the continued operation of the pipeline given the fact it lacks a valid permit, and does that harm outweigh the adverse impacts on other parties of shutting the pipeline down?” ClearView summed up the situation.

If the pipeline company prevails in court, Dakota Access could remain online for another year at least, until the EIS is completed. But if the Tribes score some wins, the pipeline could be shut down by the summer, ClearView estimated.

Even if the Tribes win, pipeline opponents took the non-decision by the Army Corps as something of a betrayal by the Biden administration, which has positioned itself as both a climate champion and an ally of Indigenous sovereignty. As the New Republic describes it, the Dakota Access pipeline is “inarguably the most significant instance of Native peoples fighting for their sovereignty in a generation.” The Biden administration whiffed on a big early test of its espoused ideals. It is now up to the courts.