Army Corps: DAPL Court Order Creates “Impossible” Standard for Critical Infrastructure Development

In their latest brief on Wednesday to the U.S. Court of Appeals for the District of Columbia Circuit, the U.S. Army Corps of Engineers argued district court Judge James Boasberg’s order requiring the agency to perform additional environmental review on the Dakota Access Pipeline creates “a new, heightened standard of judicial review that will be impossible for agencies to meet as they consider vital infrastructure projects that excite opposition from some sector of society.”

Boasberg had also called for the 1,172 mile crude oil pipeline to be shuttered earlier this month until the Corps was able to complete the Environmental Impact Statement (EIS), which was expected to take upwards of a year. However, that order was reversed by the appeals court – allowing the pipeline to continue operations at this time.

The Corps explained the extensive permitting and review process that took place before granting DAPL the necessary approvals, highlighting the oil spill modeling to analyze how a spill could potentially impact drinking water, hunting and fishing rights, and cultural practices of the nearby Native American tribes. As a result:

The Corps found that the risk of an oil spill is low and that its effects would be limited—not only because the pipeline was built with an array of safety features, but also because it is buried deep beneath the lake bed, such that 92 feet of clay create a physical barrier between the pipeline and Lake Oahe’s waters.

The Corps also explained that it its initial review and Environmental Assessment complied with NEPA because it “closely analyzed the effects of its action and rationally concluded that they are not ‘highly controversial’ or ‘significant.’” The agency also points out that the opposition of the Tribes’ experts is not sufficient to show that the effects of the Corps’ action are in fact “highly controversial.” The Corps noted:

Perhaps most significantly, while the Tribes and the district court both focused on the potential consequences of a catastrophic oil spill, they failed to discount those consequences by the very low risk that such a spill will ever occur.

In addition to overlooking these critical factors, the Court erred on a number of other principles. The Corps argues the district court applied the wrong legal standard, ignored the low risk of an oil spill, ignored the fact that the pipeline is buried deep under Lake Oahe and the extensive safety measures that are in place if a leak were to occur, wrongly ordered the Corps to prepare an EIS, abused its discretion in vacating the pipeline easement, and erred in enjoining operation of the pipeline.