Dakota pipeline ordered shut down by judge
WASHINGTON — A federal judge ruled Monday that the Dakota Access pipeline must be shut down by Aug. 5, saying federal officials failed to do a complete analysis of its environmental impacts. The decision marks the second setback for President Donald Trump’s infrastructure push in just two days, underscoring the extent to which longstanding environmental laws represent an obstacle to his quest to expand domestic oil and gas production.
U.S. District Judge James E. Boasberg wrote that the federal government had not met all the requirements of the National Environmental Policy Act, a 50year-old law that the Trump administration is seeking to weaken. The law requires federal agencies to assess and disclose how their decisions might harm the environment.
The Dakota Access pipeline, which opened in 2017, carries about half a million barrels of crude oil a day from North Dakota’s Bakken shale basin to Illinois. The ruling means the U.S. Army Corps of Engineers must conduct a more thorough analysis of how a leak in the Dakota pipeline could affect Lake Oahe, which collects water from the Missouri River and lies half a mile from the Standing Rock Indian Reservation.
Several tribes, including the Standing Rock Sioux and Cheyenne River Sioux, first challenged the pipeline in 2016. While the Obama administration slowed down the pipeline’s development as it consulted with the tribes, Trump expedited its construction immediately after taking office. It has been shipping hundreds of thousands of barrels of oil each day between North Dakota and Illinois.
“Today is a historic day for the Standing Rock Sioux Tribe and the many people who have supported us in the fight against the
pipeline,” said the tribe chairman, Mike Faith, in a statement. “This pipeline should have never been built here. We told them that from the beginning.”
“This is an unprecedented historic victory,” said Jan Hasselman, a lawyer with Earthjustice who has led the legal battle on behalf of the Standing Rock Sioux. “I can’t think of another example where a major piece of infrastructure was shut down after being in operation a couple of years.”
Energy Transfer Partners, which owns the largest stake in the Dakota Access line, called the court order “an ill-thought-out decision” and said it would immediately seek a stay so that oil could continue to flow. The company said the court order would hurt state, local and tribal tax revenue and force oil producers to pursue rail transport, which Energy Transfer Partners said was more dangerous.
During his first week in office, Trump tried to speed up work on the Dakota Access and Keystone XL pipelines by issuing executive orders aimed at overcoming regulatory obstacles. But 3½ years later, the owners of both pipelines are still fighting in court against opponents.
Joel Reynolds, a senior attorney for the Natural Resources Defense Council, said that despite the litany of environmental rollbacks during the Trump administration, the past several years also have provided a lesson on the limits of presidential power.
“Our system is set up so that it’s very unusual for the president to simply be able to snap his or her fingers and make something change,” Reynolds said.
Reynolds said that despite the president’s desire to fast-track controversial energy projects such as pipelines, there are hurdles that even the White House cannot avoid.
“We have checks and balances. We have statutes that lay out legal procedures that have to be followed,” he said. “It’s one thing to talk about deregulation; it’s quite another thing to do it.
“The Trump administration has learned the hard way that its deregulatory agenda is not something over which it has complete control,” he added. “The courts have something to say about it.”
The new court ruling Monday is also a blow to Energy Transfer Partners, the pipeline’s sponsor, which has close ties with the Trump administration. Last month, the company’s CEO, Kelcy Warren, held a fundraiser for the president in his home, and former energy secretary Rick Perry rejoined the company’s board just months after stepping down from the Cabinet.
The company, however, has been involved in other controversial projects, including the Rover natural gas pipeline that spilled drilling fluids during construction and demolished a historic home, contrary to an order by the Federal Energy Regulatory Commission.
Recently Trump has sought to speed the development of pipelines and other infrastructure projects across the country by signing new executive orders, this time seeking to waive environmental permitting laws by citing the need to bolster the economy during the coronavirus pandemic. Last month, the Environmental Protection Agency also proposed limiting the ability of states and tribes to block pipelines and other infrastructure projects that could pollute their waterways.
And the White House is expected to finalize a rule within a matter of weeks that would scale back the National Environmental Policy Act by limiting the extent to which climate change could be considered in federal approval for various projects.
Oil and gas executives have become increasingly concerned about court decisions that have stymied major pipeline projects, and appealed to the White House for help. On June 12, representatives from more than a dozen firms and the American Petroleum Institute met with officials from the White House Office of Information and Regulatory Affairs to discuss nationwide permitting rules, according to federal records.
An API official said in an email that the session was “a routine meeting” to discuss nationwide permits to be put up this year. But two individuals familiar with the meeting, who spoke on the condition of anonymity to discuss private deliberations, said the executives voiced concern about an April decision by a federal judge in Montana that has dealt a blow to the Keystone XL pipeline and raised questions about whether the Army Corps of Engineers will have to conduct more extensive environmental reviews for other environmental projects.
“Our nation’s outdated and convoluted permitting rules are opening the door for a barrage of baseless, activist-led litigation, undermining American energy progress and denying local communities the environmental, employment and economic benefits modern pipelines provide,” API President Mike Sommers said in a statement Monday. “The need to reform our broken permitting system has never been more urgent.” He said the trade group was “deeply troubled by these setbacks for U.S. energy leadership.”
But Food & Water Action’s policy director, Mitch Jones, praised the setbacks for the pipeline projects. “These monumental defeats for the fossil fuel industry are a clear sign that bold community opposition, strategic legal challenges and state-level clean energy legislation are all working together to thwart the Trump administration’s pro-polluter agenda,” he said in a statement.