Tribes Call for DAPL to be shut down, despite significant disruptive consequences

The Standing Rock Sioux and several other tribes this week filed a brief with the U.S. District Court for the District of Columbia calling for the Dakota Access Pipeline (DAPL) to be shut down while the project undergoes additional environmental review, which could take a year or more.

This comes after a federal judge ruled in March that the U.S. Army Corps of Engineers must conduct an Environmental Impact Statement (EIS) on DAPL, despite its safe operations for nearly three years – safely transporting crude oil from the Bakken region in North Dakota to a the Patoka Oil Terminal in southern Illinois. Further, the Corps had already conducted an Environmental Assessment (EA) on the project before issuing approval, which determined a “Finding of No Significant Impact” (FONSI).

Federal regulators, the state of North Dakota, industry groups, and more than a dozen attorneys general have expressed support with the court that DAPL be able to continue operations while the additional review is conducted. Shutting down DAPL would have severe economic, environmental, and energy security consequences. The ruling could set a dangerous precedent for the future of American energy infrastructure development.

As the North Dakota Petroleum Council wrote in a recent amicus brief:

In sum, shutting down DAPL after three years of operation and under the current market conditions would undermine the substantial commitments North Dakota’s oil producers have made over the past three years. It would further harm the North Dakota oil and gas industry in a time when it is already down due to the coronavirus pandemic. It would also delay any recovery from the pandemic. The loss of oil production would harm not only the companies who produce the oil, but also royalty owners and the state and local governments who rely on royalties and taxes from the production, both during the pandemic and long afterward. It would also harm the service industries and employees who supported the lost production. Ultimately, a shutdown of DAPL in the currently distressed environment likely would cause companies to fail who otherwise might have survived, and jobs to be lost that otherwise might have been saved.

The Corps believes it is “highly likely” that they will be able to substantiate its past permitting decisions after conducting the EIS. As the Corps wrote in their recent brief:

There has already been a great deal of environmental and technical review that informed the Corps’ substantive decisions. Given the amount of analysis that has occurred thus far and the specific easement conditions imposed, it is highly likely that the Corps will ultimately be able to substantiate its existing property management decision after correcting the procedural error identified by the Court.

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Without this property interest, the portion of the Pipeline under Lake Oahe would constitute an encroachment on federal land prompting the Corps to undertake an administrative process to determine whether corrective measures, such as removal, are required. Disruptions from removal could include, among other things, creating the “extreme waste” of dismantling and rebuilding the Pipeline. Removal or even temporary decommissioning could create additional construction-related impacts and result in oil being transported by truck or rail—transportation methods that entail both greater risk of spills and greater air pollution than pipeline transport.

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The Corps respectfully submits that the Court should not vacate the Corps’ easement decision authorizing Dakota Access to construct a portion of the Dakota Access Pipeline 100 feet under the bed of Lake Oahe. The Corps’ errors were not “serious” in context, and the disruptive consequences of vacatur would be significant.

While opponents have pointed out the oil industry has struggled in light of the coronavirus, additional impairments such as shutting down DAPL will only further impact our nation’s energy producers and hinder development. In order to maintain American energy dominance, it is critical that Dakota Access be able to continue operations, and that policymakers and regulators ensure a streamlined permitting and approval process that provides regulatory certainty for investors.