Dakota Access turns to US Supreme Court to nix mandated environmental review
While imminent threats to the oil pipeline's operations have largely dissipated over the last few months, the completion of the Army Corp's ongoing environmental review, scheduled for September of 2022, could reignite litigation.
BISMARCK — Operators of the Dakota Access Pipeline are taking their long-running dispute over the embattled North Dakota project to the nation's highest court.
Attorneys representing Dakota Access LLC filed a petition to the U.S. Supreme Court on Monday, Sept. 20, calling for a reassessment of whether the pipeline should have to undergo an extensive environmental review ordered by an appeals court earlier this year.
The move comes on the heels of a turbulent year and a half for the pipeline, which has carried oil out of western North Dakota since its completion in 2017.
Members of the Standing Rock Sioux tribe have long argued the pipeline's Missouri River crossing just off their reservation endangers their water supply. Last June, federal district court Judge James Boasberg voided the pipeline's permit at the river crossing, ordering an immediate shutdown until the completion of a new environmental review by the U.S. Army Corps of Engineers.
The D.C. Circuit Court of Appeals later overruled that shutdown order, allowing the pipeline to continue carrying oil, but upheld the mandated environmental review. Dakota Access informed the appeals court of its intention to take their argument over the environmental review to the Supreme Court in April, but imminent threats to the pipeline's operations have largely dissipated since then.
In recent months, both Boasberg and the Army Corps declined to take action against the pipeline for operating without a legal permit at the Missouri River crossing.
While Indigenous and environmental opponents have so far come up short in their push to shutter the Dakota Access Pipeline, the completion of the Army Corps' environmental review could reignite litigation over the pipeline's operations.
In its petition to the Supreme Court, Dakota Access said the additional review is unnecessary, arguing the precedent set by the lower court's order threatens to needlessly delay future infrastructure projects.
"This case carries enormous ramifications for the oil industry, its workers, and the nation," the company told the Supreme Court. The lower court's order, the company said, "leaves DAPL at a significant risk of being shut down, which would precipitate serious economic and environmental consequences."
Jan Hasselman, an attorney representing the Standing Rock tribe, called the company's petition to the Supreme Court "a long shot" and noted an attempt by Dakota Access to have the federal appeals court reconsider its decision on the environmental review failed earlier this year.
The Supreme Court is highly selective in the cases it chooses to hear and requires approval from four of the nine justices to make it into their docket.
"I'm certainly not making any predictions or pounding my chest to say that this can't happen," Hasselman added. "We will take our opportunity to explain to the court why this is not a candidate for their review."
Hasselman said recent revelations about pipeline safety violations , as well as the company's ongoing effort to double the pipeline's capacity, make additional environmental review of the pipeline all the more important.
The Army Corps' review began last fall, and the federal agency recently announced it would extend the end date until September of 2022.
A spokesperson for Energy Transfer Partners, the Texas-based parent company of Dakota Access, did not immediately respond to The Forum's request for comment on the petition.
The company reported last month that its plans to double the capacity of Dakota Access are halfway finished, allowing the pipeline to pump 750,000 barrels of oil per day. The rest of the expansion, to 1.1 million barrels a day, is expected to be complete by the end of this year.
Readers can reach reporter Adam Willis, a Report for America corps member , at email@example.com.