D.C. Circuit Court of Appeals Removes Injunction Against Dakota Access Pipeline

October 19, 2016

On Sunday, October 9, the D.C. Circuit Court of Appeals released a per curiam order dissolving an injunction that was preventing the pipeline company Energy Transfer from continuing construction on the Dakota Access Pipeline.
Energy Transfer plans for the pipeline to connect sources of sweet crude production in North Dakota with existing pipelines in Illinois, moving approximately 470,000 barrels per day.  According to Energy Transfer, the pipeline will allow this oil to “reach major refining markets in a more direct, cost-effective, safer, and environmentally responsible manner.”  The company also points out that the pipeline project will play a role in establishing energy independence for the U.S.  Additionally, Energy Transfer claims that the pipeline will create up to 12,000 local jobs during the construction phase, will generate millions in local tax revenue, and will “address transportation strains” by freeing up current methods of delivery like rail cars.
Energy Transfer assures citizens that the pipeline will meet and exceed federal safety standards, and that it will utilize the best available technology to ensure that the pipeline will deliver oil safely, efficiently, and in an environmentally friendly manner.  Specifically, the company points to the use of X-rays to inspect welds, pressure and temperature sensors that monitor changes and help prevent failures, and a remote-controlled emergency shutdown system.
Still, the pipeline has been met with plenty of resistance.  The recent D.C. Circuit ruling is the most recent development in the fight of the Standing Rock Sioux tribe to stop the pipeline from crossing under Lake Oahe and through land near the tribe’s reservation “which straddles the North and South Dakota border.”  The Standing Rock tribe “opposes the pipeline because they say the route crosses sacred sites and burial places.”  “They are concerned that if the pipeline ruptures, an oil spill could pollute drinking water.”  As a result, the tribe brought suit under Section 106 of the National Historic Preservation Act which, “requires all Federal agencies to take into account the effects of their actions on historic properties.”  The tribe had achieved a temporary pause in construction while the D.C. Circuit reviewed its claim.  The October 9 ruling once again opened the door for construction to continue.  Even while ruling to deny an injunction, the D.C. Circuit appears supportive of tribe and environmental issues and makes its regret of the order clear by saying,

“we can only hope the spirit of Section 106 may yet prevail.”

Tribal Chairman Dave Archambault II called the ruling “disappointing,” but assured, “We aren’t done with this fight.”  And Archambault is not alone.  Recently five Senators, including Bernie Sanders, wrote a letter to President Obama, asking the President to use his authority to stop pipeline construction until the Army Corps of Engineers has completed a “full environmental impact statement . . . that includes meaningful tribal consultation.”
Section 102(2)(C) of the National Environmental Policy Act (NEPA) requires that an environmental impact statement (EIS) be completed for any “major Federal actions significantly affecting the quality of the human environment.”  The EIS process is “the most rigorous level of NEPA compliance,” and would inevitably cause substantial delay to the pipeline project, even if the project were eventually approved.
Despite the ruling, and even without a full EIS, completion of the proposed route is far from certain.  The Army Corps of Engineers has yet to approve the necessary easement for construction under Lake Oahe.  In fact, the day after the ruling, “the departments of Justice, Interior, and the Army issued a joint statement refusing to authorize construction along part of the proposed route,” and requesting that the pipeline company “voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.”  Thus far, there has been no such “voluntary pause,” as construction commenced soon after the ruling.
These recent developments have led to what some call protests, and others call riots.  While many protests remain peaceful, some have turned dangerous and even violent.  Over two dozen protestors were arrested near the Standing Rock Reservation while, elsewhere, reports of tampering with pipeline infrastructure surfaced.  Pipeline representatives warn that such tampering is both dangerous and contrary to environmentalist goals since, “incorrectly closing a valve . . . could cause a pressure surge, rupture the pipeline and cause a spill.”
As tension levels continue to rise, parties on both sides of the conflict await a truly final decision.