A U.S. appeals court has upheld a lower court decision to reject key environmental approvals for the fiercely-contested Dakota Access pipeline, while reiterating its own conclusion that District Judge James E. Boasberg went too far in ordering the pipeline to shut down.
In its ruling yesterday, “the U.S. Court of Appeals for the District of Columbia Circuit agreed with a lower court that the Army Corps of Engineers fell short of the National Environmental Policy Act when it allowed Dakota Access to cross a federal reservoir in North Dakota—and that the violation warranted scrapping the easement,” Bloomberg Law reports.
While the court ruling “doesn’t force the project to shut down” after three years in operation, “that risk remains,” Bloomberg adds.
The news agency cites two possible pathways for closing out a pipeline that is high on Indigenous campaigners’ priority list for the new government in Washington. A separate case still before a lower court could lead to a shutdown order. Or the White House could pause pipeline operations under its own authority.
“It’s time for the Biden administration to keep its promises to Indian country and shut down this illegal pipeline,” said Jan Hasselman, the Earthjustice lawyer who’s been representing the Standing Rock Sioux. “It never should have been authorized in the first place, and it cannot be allowed to operate for another day until these issues are fully resolved.”
Tuesday’s court ruling leaves “a cloud of legal uncertainty” for the pipeline, which has now been operating without its easement since Boasberg’s original ruling in July, Bloomberg notes. “Without that authorization, the oil pipeline is technically encroaching on federal land.”
While Donald Trump’s administration “opted to forego any enforcement action to address the encroachment,” the news agency adds, “advocates have pushed the Biden administration to use the situation to force Dakota Access to halt operations during an environmental review process.”
That process could take years, Inside Climate News reported last March, when Boasberg first ordered the Army Corps of Engineers to go back over its environmental review of the 1,200-mile pipeline.
“This Court ultimately concludes that too many questions remain unanswered,” the judge wrote at the time. “Unrebutted expert critiques regarding leak detection systems, operator safety records, adverse conditions, and worst-case discharge mean the easement approval remains ‘highly controversial’” under the U.S. National Environmental Policy Act.
Inside Climate said the Army Corps had already completed a supplementary review at that point, but Boasberg found it had failed to address key concerns about potential pipeline spills. “He gave the Corps the opportunity to fix what was wrong with the environmental assessment and they completely blew it,” said Vermont Law School professor Pat Parenteau. “I don’t think they left Judge Boasberg any choice.”