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Tribe to judge: Ignore ‘alarmist’ Dakota Access promoters


Niina H. Farah, E&E News 

Promoters of the Dakota Access pipeline are using “alarmist rhetoric over facts” to challenge a federal judge’s order to shut down and drain the oil pipeline, Native American tribes warned a federal appeals court.

The Standing Rock Sioux Tribe and others called for the U.S. Court of Appeals for the District of Columbia Circuit to keep the pipeline from temporarily carrying crude as the Army Corps of Engineers reassesses the risks posed by keeping the project going.

The D.C. Circuit put a temporary hold on an order earlier this month from the U.S. District Court for the District of Columbia ordering Dakota Access developer Energy Transfer Partners (ETP) to shut down the 1,172-mile pipeline by Aug. 5 while the Army Corps completed an environmental impact statement .Both the pipeline developer and the Army Corps appealed the order from Judge James Boasberg, warning of the economic consequences of shutting down a pipeline that had been operating for three years.

But the tribes said the projected financial harm is overblown.

“As it has done at previous stages of this litigation, DAPL seriously exaggerates the impacts of vacatur,” the Standing Rock Sioux, along with the Cheyenne River Sioux Tribe, Oglala Sioux Tribe and Yankton Sioux Tribe, wrote in a brief to the court.

The tribes noted oil production in the Bakken Shale region of North Dakota had “plummeted” recently by 500,000 barrels per day — roughly the amount the pipeline typically carries — for reasons unrelated to the litigation.

“Shutting down DAPL would have no ‘noticeable’ impact on production. And because production has fallen so sharply, the claim that producers would need to shift the pipeline’s entire volume onto rail also fails,” they wrote.

Boasberg’s decision followed his ruling in March that the Army Corps had violated the National Environmental Policy Act when it authorized the pipeline crossing beneath Lake Oahe.

The tribes praised Boasberg, an Obama appointee, for applying the principles of administrative law “exactingly” and correctly balancing the impacts of shutting down the pipeline with risks of allowing it to operate pending completion of the EIS.

They also pointed to Boasberg’s conclusion that “allowing the pipeline to continue operating would create undesirable incentives for future agency actions by encouraging others to commit to projects before compliance with NEPA.”

The tribes said ETP had already assumed the risks of construction by previously pushing forward with the pipeline, despite being aware of significant legal challenges. Meanwhile, the Army Corps’ decision to move forward without completing an EIS had come after other federal agencies had warned that they needed to complete the more rigorous analysis.

They noted that both the district court and the tribes had been willing to work out a compromise on the timing of the pipeline shutdown after ETP said the process would take months to complete safely.

“DAPL rejected this opportunity, choosing instead to rush into this Court,” they wrote in a footnote.



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