07 July 2020

Court Shuts Down Dakota Access Pipeline

On July 6, 2020, Judge James E. Boasberg of the U.S. District Court for the District of Columbia vacated the easement that had been granted to the Dakota Access Pipeline (DAPL) under the Mineral Leasing Act and ordered DAPL to be shut down in 30 days. The U.S. Army Corps of Engineers (Army Corps) had granted the easement allowing the pipeline to pass underneath Lake Oahe. Several groups challenged the easement under federal law, including the National Environmental Policy Act (NEPA), claiming the Army Corps was required to complete an Environmental Impact Statement (EIS) before deciding whether to grant the easement. After years of litigation and the intervening changes in approach between the Obama and Trump administrations, this March the court found the government had violated NEPA and ordered the Army Corps to perform an EIS for the entire pipeline project — a process that the Army Corps estimated would take over a year. However, as DAPL was built and in operation, the court had sought briefing on what should happen to the pipeline’s operations during the EIS process. After weighing the deficiencies with the NEPA process that the court had found previously and the economic and environmental disruption that would accrue if the pipeline were shut down, the court decided to vacate the easement, thereby shutting down DAPL and requiring it to be emptied of oil at least until the Army Corps completes its EIS. DAPL filed an emergency motion to stay the vacatur on the same day Judge Boasberg’s decision was issued, indicating that it intends to appeal the order. Judge Boasberg denied that motion on July 9, 2020. It remains to be seen what action the government may take.

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