Judge denies tribal request for temporary Dakota Access Pipeline shutdown

A federal judge has denied a request from tribes to temporarily shut down the Dakota Access Pipeline while it undergoes a court-mandated environmental review. 

Judge James Boasberg wrote in an opinion issued Friday that in order to get a shutdown, the tribes must “must demonstrate a likelihood of irreparable injury from the action they seek to enjoin — to wit, the pipeline’s operation.”

“Plaintiffs have not cleared that daunting hurdle,” he wrote.

The pipeline is set to undergo an environmental review following a ruling from Boasberg, an Obama appointee, last year that said that the U.S. Army Corps of Engineers (USACE) should have conducted a rigorous Environmental Impact Statement before granting the pipeline a permit to go underneath a reservoir on the Missouri River. 

In his initial ruling, the judge also said that the pipeline should be shut down while the review is underway. 

An appeals court upheld the need for the review, but reversed the temporary shutdown.

The appeals court gave the USACE the chance to shut down the pipeline, but wrote that “it may well be” that “the law or the Corps’s regulations oblige the Corps to vindicate its property rights by requiring the pipeline to cease operation.”

During an April hearing, a lawyer representing the government said that it wouldn’t shut down the pipeline for the time being, but left the door open for a possible future change, calling it a matter of “continuing discretion.”

In response, Boasberg said that he would weigh the request from the tribes to shut down the pipeline while the review is underway.

In his opinion issued Friday, Boasberg blamed USACE for allowing the pipeline to remain in operation. 

“Even though this Court vacated the easement for DAPL to cross beneath Lake Oahe, and even though the D.C. Circuit affirmed such vacatur, the pipeline has maintained operations as if none of these developments had occurred,” he wrote. “Those seeking an explanation for the persistence of this surprising state of affairs over the past ten-odd months need look no further than the Defendant in this case: the Corps.”

“The Corps has conspicuously declined to adopt a conclusive position regarding the pipeline’s continued operation, despite repeated prodding from this Court and the Court of Appeals to do so,” he added.

“The practical consequences of the Corps’ stasis on this question of heightened political controversy are manifest: the continued flow of oil through a pipeline that lacks the necessary federal authorization to cross a key waterway of agricultural, industrial, and religious importance to several Indian Tribes,” he stated.

The judge also wrote that the tribes had higher hurdles to cross than USACE in order to be able to shut down the pipeline, writing “binding caselaw requires that the Tribes make an evidentiary showing far beyond anything the Corps needs to itself shut down DAPL.”

In asking for a review, the Standing Rock Sioux, Cheyenne River Sioux, Ogala Sioux and Yankton Sioux tribes argued that the pipeline’s continued operations could put them at risk in the case of an oil spill.

Jan Hasselman, an attorney representing the tribes, reiterated that they believe that it’s dangerous to leave the pipeline in operation.

“The unacceptable risk of an oil spill, impacts to Tribal sovereignty and harm to drinking water supply must all be examined thoroughly in the months ahead as the U.S. Army Corps conducts its review of this pipeline,” Hasselman said in a statement.

Dakota Access has argued that shutting down the pipeline would harm the company, workers, states, localities, industry and other tribes.

Energy Transfer, which operates the pipeline, said in a statement it was pleased with the ruling.

“Dakota Access has been safely operating for four years and as the events of the last few weeks have demonstrated, pipelines are the best and safest way to transport critical oil and natural gas supplies throughout the country,” the company said in a statement.

The nearly 1,200 mile pipeline carries oil from North Dakota to Illinois.

The Dakota Access pipeline was completed in 2017 after former President Trump ordered for it to be revived, a reversal from when the Obama administration denied a permit for the project.

The pipeline has drawn massive protests from environmentalists and tribes. 

Updated 6:30 p.m.