Federal Judge Denies Emergency Request to Delay Dakota Access Pipeline Shut Down

Federal Judge Denies Emergency Request to Delay Dakota Access Pipeline Shut Down
A fire set by protesters burns in the background as opponents of the Dakota Access pipeline leave their main protest camp near Cannon Ball, N.D., on Feb. 22, 2017. (Tom Stromme/The Bismarck Tribune/AP)
Janita Kan

A federal judge has denied an emergency request to delay the process of shutting down the Dakota Access Pipeline while the project's attorneys appeal the decision in order to keep the oil pipeline running.

U.S. District Court Judge James Boasberg on Monday ordered the underground oil pipeline to be shut down and emptied by Aug. 5, while the U.S. government conducts an in-depth environmental impact review. The court had previously ruled that the U.S. Army Corps of Engineers had violated federal environmental law when it granted a permit for an easement to construct a segment of the 1,172-mile pipeline beneath Lake Oahe, a large reservoir behind a dam on the Missouri River.

Following the order, the pipeline owners, Dakota Access, which is controlled by its parent company Energy Transfer, filed an emergency motion to temporarily stay Boasberg's order as well as a notice to appeal the decision to the circuit court. Although Boasberg rejected the application for an emergency stay, he said the court will set a status hearing to discuss the schedule for briefing on a separate request to stay the court's decision while the case plays out in the appeals court once he receives that request.

Energy Transfer said in a statement on Monday that if the emergency motion for a provisional stay is denied, the company intends to pursue a stay and expedited appeal with the appeals court.

“We believe that the ruling issued this morning from Judge Boasberg is not supported by the law or the facts of the case. Furthermore, we believe that Judge Boasberg has exceeded his authority in ordering the shutdown of the Dakota Access Pipeline, which has been safely operating for more than three years. We will be immediately pursuing all available legal and administrative processes and are confident that once the law and full record are fully considered Dakota Access Pipeline will not be shut down and that oil will continue to flow,” Lisa Coleman, a spokesperson for the company, said in a statement to The Epoch Times.

Dakota Access's attorneys argued in their application that an emergency stay was warranted because the company needs some certainty from a ruling on the forthcoming stay motion. They argue that the process of shutting down a major interstate pipeline involves a number of time-consuming and expensive steps and requires "well more" than 30 days to complete.

"A provisional stay is, therefore, necessary to ensure that Dakota Access is not required to take these steps before this Court (or the D.C. Circuit, if needed) rules on the forthcoming motion for stay pending appeal," the attorneys wrote (pdf).
Lawyers for Native American tribes suing the government over the pipeline opposed the emergency request, arguing that Dakota Access failed to show that it is entitled to a stay and had asked the court to rule without allowing the other parties to be heard. They also called the company's expedited briefing schedule unfair (pdf).

In his ruling on Monday, Boasberg wrote that he was mindful of the disruption the shutdown would cause to the pipeline and the oil industry but determined that the gravity of the federal government’s deficiencies “outweighs the negative effects of halting the oil flow” for about 13 months, which is the amount of time the U.S. Army Corps of Engineers estimated an environmental impact statement would take.

“Given the seriousness of the Corps’ NEPA error, the impossibility of a simple fix, the fact that Dakota Access did assume much of its economic risk knowingly, and the potential harm each day the pipeline operates, the Court is forced to conclude that the flow of oil must cease,” Boasberg, an Obama appointee, wrote in his ruling (pdf).
The pipeline had drawn widespread opposition and months of protests from environmental activists, veterans, clergy, and members of at least 200 other tribes. The Standing Rock Sioux Tribe, which says the pipeline passes through its ancestral lands, brought a lawsuit against the federal government in 2016 in an attempt to block the construction. The tribe is worried that the construction and possible oil leaks would lead to the destruction of its sacred sites and pollute its land and water. Several other tribes joined Standing Rock in their lawsuit.

The pipeline owners and its supporters argue that shutting the pipeline down would have serious repercussions for the North Dakota oil industry. They say there is currently no viable alternative method to transport 570,000 barrels of crude oil that the Dakota Access Pipeline is able to carry each day, and that this would drive up prices of the oil.

They also say the shutdown would also have a “reverberating effect” on North Dakota’s economy, which heavily relies on oil and gas taxes.