Published on Jul 22, 2017
The Standing Rock Sioux Tribe won a significant victory today in its fight to protect the Tribe’s drinking water and ancestral lands from the Dakota Access pipeline.
A federal judge ruled that the federal permits authorizing the pipeline to cross the Missouri River just upstream of the Standing Rock reservation, which were hastily issued by the Trump administration just days after the inauguration, violated the law in certain critical respects.
In a 91-page decision, Judge James Boasberg wrote, “the Court agrees that [the Corps] did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial.”
The Court did not determine whether pipeline operations should be shut off and has requested additional briefing on the subject and a status conference next week.
“This is a major victory for the Tribe and we commend the courts for upholding the law and doing the right thing,” said Standing Rock Sioux Chairman Dave Archambault II in a recent statement.
“The previous administration painstakingly considered the impacts of this pipeline, and
President Trump hastily dismissed these careful environmental considerations in favor of political and personal interests.
We applaud the courts for protecting our laws and regulations from undue political influence and will ask the Court to shut down pipeline operations immediately.”
Days before summer on June 14, 2017, Judge James Boasberg issued his latest opinion in the long-running dispute by the Standing Rock Sioux Tribe (SRST) and the Dakota Access Pipeline (DAPL).
Judge Boasberg’s opinion was something of a cliffhanger, with its final episodes yet to be written. After his exhaustive examination of the record, he found that:
[T]he Corps’ decision on July 25, 2016, and February 3, 2017, not to issue an EIS largely complied with NEPA [the National Environmental Policy Act].
Yet there are substantial exceptions: the agency failed to adequately consider the impacts of an oil spill on Standing Rock’s fishing and hunting rights and on environmental justice, and in February 2017,
it did not sufficiently weigh the degree to which the project’s effects are likely to be highly controversial in light of critiques of its scientific methods and data.
To remedy these violations the Corps will have to reconsider those sections of its environmental analysis on remand from the Court. Whether Dakota Access must cease pipeline operations during that remand presents a separate question of the appropriate remedy,
which will be the subject of further briefing.
Judge Boasberg noted that the initial presumption in NEPA cases is that the operation of any facility covered by NEPA should cease until compliance is achieved,
which normally requires a complete environmental impact statement, which in this case seems to be of uncertain scope and duration. But he also noted that in all manner of legal proceedings this presumption can be overcome by a showing that the shut-down generated undue hardship on the defendant’s operation relative to any purported benefits that it prescribed.
Until those issues are vetted, the Army Corps and DAPL are, of course, to address any of the perceived deficiencies, just as the SRST can lodge yet another round of objections to the continued operation of the pipeline. The hard question is how to think about the underlying problem.
The operation of DAPL should be allowed to continue while any further adjustments are made, just as these adjustments have been routinely made to date.
The central insight here is this: don’t worry about the loose ends of a project, which at its core promises vast improvements in safety and efficiency for all parties concerned over the situation as it existed before DAPL was put into operation.
To see why, I shall review the key issues of law and fact. On this matter, writing in my capacity as an advisor to the GAIN Coalition.
Taking into account all of the developments, it would be a great setback for both environmental protection and energy sufficiency to shut down DAPL, now that, at a cost of close to $4 billion, it has already been in operation since June 1, 2017.
We will attempt to layout this analysis in three stages. First, we shall give a general overview of the DAPL pipeline focused on safety and efficiency issues. Second, we shall address, in some detailed, the three stated concerns that Judge Boasberg singled out for special treatment. Third, we shall examine the balance of equities to explain now Judge Boasberg ought to rule on the pending motion that DAPL be shut down.
In this instance, the balance of equities tilts overwhelming in favor of keeping the pipeline operational even if there are some imperfections in evidence presented by DAPL and its evaluation by the Army Corps.