WASHINGTON — A federal judge in Washington on Monday ordered a complete shutdown of the Dakota Access Pipeline after finding the US government violated federal environmental law, a major defeat for the Trump administration and the company that built the pipeline three years after it became operational.
The ruling is a long-awaited win for Native American tribes that have fought the pipeline in court for years, and who had lost when they tried to stop it from going online in the summer of 2017. They’ve argued that the pipeline could cause serious environmental harm to Lake Oahe, a large lake that spans the border of North and South Dakota.
The Obama administration had paused the project in 2016 — thousands of Native Americans and other protesters held large demonstrations at the site near the Standing Rock Indian Reservation — but the Trump administration reversed course and allowed construction to proceed.
US District Judge James Boasberg wrote Monday that even though a shutdown likely would have significant economic consequences, there was no other option until the US Army Corps of Engineers completed a full Environmental Impact Statement given the “seriousness” of the agency’s violation and the potential environmental harm the pipeline posed while it carried oil in the meantime.
“The Court does not reach its decision with blithe disregard for the lives it will affect. It readily acknowledges that, even with the currently low demand for oil, shutting down the pipeline will cause significant disruption to DAPL, the North Dakota oil industry, and potentially other states,” Boasberg wrote. “Yet, given the seriousness of the Corps’ [National Environmental Policy Act] 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 gave the pipeline company 30 days to empty the pipeline and shut it down by Aug. 5. The Trump administration could appeal Boasberg’s decision to the US Court of Appeals for the DC Circuit.
“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,” Mike Faith, chair of the Standing Rock Sioux Tribe, said in a statement. “This pipeline should have never been built here. We told them that from the beginning.”
A Justice Department spokesperson declined to comment. Energy Transfer Partners, the parent company of the pipeline project, said in a statement that they planned to pursue an expedited appeal before the DC Circuit if Boasberg refused to delay his order, and were "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."
"The economic implications of the Judge’s order are too big to ignore and we will do all we can to ensure its continued operation," the company stated. "This was an ill-thought-out decision by the Court that should be quickly remedied."
Monday’s ruling came several months after Boasberg issued a decision in March finding the US Army Corps of Engineers had violated the National Environmental Policy Act when it gave the pipeline company permission to build under Lake Oahe. The Army Corps conducted what’s known as an Environmental Assessment, and determined that a more in-depth Environmental Impact Statement wasn’t required.
Boasberg concluded at the time that the Army Corps was wrong. Under the National Environmental Policy Act, the government isn’t always required to complete an Environmental Impact Statement before granting permits for a particular project, but the law lays out factors that can trigger a requirement to do one. One is if the effect of a project on the environment is “likely to be highly controversial.” It’s a factor that turns on how much dispute there is about the “size, nature, or effect” of an action by the federal government.
Boasberg found that when it came to the Dakota Access Pipeline project, the Army Corps had failed to resolve the controversy over the environmental effects of the pipeline when it approved the construction plan.
Recognizing that ordering a full shutdown was an extraordinary move, Boasberg in March gave both sides more time to argue over what he should do.
The judge noted in Monday’s decision that the pipeline’s owners raised significant concerns about the financial cost and potential job losses that would come with shutting down the pipeline now — the company submitted declarations saying it could lose $643 million over the rest of 2020 and another $1.4 billion in 2021. The company, along with other groups that submitted briefs to the court opposing a shutdown, argued there would be ripple effects on other industries that relied on oil coming through the pipeline, as opposed to by rail or other transportation routes.
The tribes, meanwhile, responded that the pipeline company’s prediction of economic problems were “wildly exaggerated” given that oil prices had already gone down because of economic instability during the coronavirus pandemic.
Boasberg wrote that it was clear the shutdown would have economic consequences, and that he did not take the issue “lightly,” but ultimately it didn’t “tip the scales” in favor of letting the pipeline continue to operate while the Army Corps did its full environmental review. A complete shutdown would give the Army Corps incentive to stick to its estimated timeline of 13 months to complete the review, the judge wrote, and he found that siding with the pipeline company now would undermine the purpose of the environmental policy law.
“When it comes to NEPA, it is better to ask for permission than forgiveness: if you can build first and consider environmental consequences later, NEPA’s action-forcing purpose loses its bite,” Boasberg wrote.
Leading up to the pipeline going operational in June 2017, Boasberg had denied requests by the Standing Rock Sioux Tribe and other Native American tribes for injunctions based on arguments that the pipeline plan violated the tribes’ religious freedom and historic preservation laws.
The tribes continued to press the case even after the pipeline began carrying oil. Once the agency finishes the Environmental Impact Statement, the litigation could stretch on if the tribes decided to lodge a separate challenge to the outcome of that study. The judge noted that an Environmental Impact Statement is “a separate regulatory beast” and that the final product could be subject to its own round of court review.
Updated with comment from Energy Transfer Partners.