Dakota Access Pipeline Continues Accepting Oil After Shut Down Order

The company behind the intensely controversial Dakota Access Pipeline isn’t explicitly defying a court order. But nor was it reported to have taken any steps last week to comply with Judge James Boasberg’s ruling that the line must shut down within 30 days, after failing to meet environmental assessment requirements.

Dallas-based Energy Transfer Partners “continued to fill [DAPL] with North Dakota crude oil on Wednesday and said it has no immediate plans to shut down the line, despite a federal judge’s order that it be stopped within 30 days for additional environmental review,” The Associated Press reported Wednesday. The company was still taking orders for shipments beyond Boasberg’s August 5 closure deadline.

“We are not shutting in the line,” spokesperson Vicki Granado told Bloomberg, adding that “we believe [the judge] exceeded his authority and does not have the jurisdiction to shut down the pipeline or stop the flow of crude oil.”

The company later clarified it did not plan to defy Boasberg’s order, but said it would need 86 to 101 days to empty the pipeline and keep it in condition for future use. That estimate was part of an unsuccessful bid last week to persuade the judge to rescind his ruling.

“The company says the line must be filled with an inert gas, such as nitrogen, to keep the pipe from corroding if oil no longer flows through it,” the Bismarck Tribune reports. “Energy Transfer outlined the process in a motion filed Wednesday evening in which it asked the judge to put the order on hold while it appeals the decision to a higher court.”

Citing the company, the Tribune says shutting down the pipeline will involve “a number of expensive” steps, including US$24 million to empty and preserve it and another $67.5 million for each year it stays out of service. “Energy Transfer also discloses the revenue hit it anticipates during a shutdown, estimating it will lose out on at least $2.8 million every day the line sits idle,” the local paper says.

“The severe economic toll—just as our nation is regaining its footing and struggling to emerge from a global pandemic—would be in the billions of dollars, with many thousands forced out of work,” the company’s court filing stated.

While he acknowledged costs associated with the shutdown, Earthjustice lawyer Jan Hasselman, attorney for the Standing Rock Sioux Tribe, said the company “has a history of wild exaggeration,” and in this case, “we think the claims are overblown”.

On Thursday, Boasberg said the company had “emphasized its understandable desire to be heard in the Court of Appeals as soon as possible,” and had meanwhile agreed to negotiate the logistics of a shutdown.

But by then, “Energy Transfer’s statement that DAPL was not being shut down caused a stir, with some observers asking whether the company intended to openly defy the federal court,” DeSmog says.

“To be clear, we have never suggested that we would defy a court order,” the company wrote. “Rather, DAPL is seeking appropriate relief from that order through the established legal process.”

On that basis, company spokesperson Lisa Coleman said investors “should not be concerned about the possibility of court sanctions against the company or its management,” DeSmog adds.

Hasselman said his client isn’t “overly worried” about how long it’ll take to shut the line down, after four years of fighting it in court. “If it takes longer than 30 days to drain the pipeline of oil, I don’t think that’s a major issue,” he told the Tribune.

But Energy Transfer “is playing a very dangerous game,” he said, in an interview with Bloomberg. “They don’t get to ignore a federal court order just because they disagree with it.”

“Perhaps they’re taking their inspiration from the father of the Trail of Tears, Andrew Jackson. In response to the 1832 Supreme Court decision that established tribal sovereignty in the U.S.—Worcester vs. Georgia—President Jackson declared: ‘[Chief Justice] John Marshall has made his decision. Now let him enforce it,’” added the Bismarck, ND-based Lakota People’s Law Project. “But this is not 1832,” and “we will not let this corporation, this pipeline, or this president trample on our sovereignty.”

Energy Transfer’s bare-knuckle response to the court ruling is a vintage performance for its owner, billionaire pipeline mogul Kelcy Warren, who has apparently said he’s “proud of the Dakota Access oil project like it were his son,” Bloomberg reports.

The company’s refusal to begin the shutdown procedure “was, to Warren’s enemies in the Indigenous community and conservation circles, an incendiary statement that would only add to the bitterness remaining four years after the project stoked weeks of protests at the Standing Rock reservation in North Dakota,” the news agency writes. “To his supporters, it was classic Warren: The 64-year-old CEO, a fundraiser for…Donald Trump, has adopted a relentlessly aggressive approach to building pipelines.”

“Energy Transfer has taken the view that if you want to get anything built or done in this current regulatory environment, you have to be aggressive,” Hinds Howard, a portfolio manager at CBRE Clarion Securities LLC, told Bloomberg. “It’s a strategy and a corporate culture that’s maybe out of step with the times.”

In an editorial published Thursday, the Bismarck Tribune say any criticism resulting from Boasberg’s ruling should be directed not at the judge, but at the U.S. Army Corps of Engineers, for failing to conduct a proper environmental assessment before the pipeline was built.

“The more thorough environmental review known as an environmental impact statement is what the Standing Rock Sioux and other tribes have been asking for all along,” the editors write. “It’s what the Corps should have done in the first place before it granted the controversial easement allowing the pipeline to be built under Lake Oahe, just north of the Standing Rock Reservation.”

In his ruling last week, Boasberg opined that “when it comes to [the U.S. National Environmental Protection Act], it is better to ask for permission than forgiveness: if you can build it first and consider environmental consequences later, NEPA’s action-forcing loses its bite.”

Against that reality, “the Corps has repeatedly failed in its review of the pipeline, taking shortcuts that will now have serious ramifications for the state three years after the pipeline began operating,” the Tribune adds. “One example of failure is the agency’s environmental justice analysis, which is required under NEPA to determine whether low-income or minority communities would be disproportionately harmed by the project.”

But ultimately, that criticism lands on the former reality TV star and failed real estate magnate currently occupying the White House. “The Corps was prepared to do a full EIS,” the Tribune said, “until…Donald Trump pushed the project forward days after taking office in January 2017.”

In his ruling, Boasberg said a full EIS normally takes more than three years to complete. The Army Corps expected to finish its DAPL analysis in 13 months.