Tribe, Corps at odds over whether to shut down Dakota Access Pipeline during review

Tribe, Corps at odds over whether to shut down Dakota Access Pipeline during review

Dakota Access River Crossing

The Dakota Access Pipeline crosses under the Missouri River from Morton County into Emmons County at this site near the power lines. To the south lies the community of Cannon Ball on the Standing Rock Sioux Reservation.

The Standing Rock Sioux Tribe has asked a federal judge to effectively shut down the Dakota Access Pipeline while a lengthy environmental review is underway, a move North Dakota officials say would have “significant disruptive consequences” for the state.

The tribe wants U.S. District Judge James Boasberg to revoke key permits for the pipeline after he ordered a federal agency in March to conduct an Environmental Impact Statement, a more substantial type of environmental study than one previously completed. Boasberg has presided over the tribe’s lawsuit against the U.S. Army Corps of Engineers since it was filed nearly four years ago.

Standing Rock and several other Sioux tribes that are part of the suit said in a court filing this week that allowing the pipeline to continue operating “would expose Tribal treaty rights, trust resources, and the Tribes themselves to risks and impacts that have never been properly examined.”

The tribe goes on to say that the pipeline’s continued operation would turn the environmental review process “on its head, by allowing the action before the analysis, in violation of law.”

The Corps, meanwhile, seeks to keep its permits active while it conducts the study, which it estimates will take until mid-2021.

The agency granted an easement in 2017 allowing the pipeline to cross under the Missouri River just north of the tribe’s reservation. The Corps said in a court filing last month that if the permit is revoked, that portion of the pipeline “would constitute an encroachment on federal land,” prompting the Corps to consider “whether corrective measures, such as removal, are required.”

“Disruptions from removal could include, among other things, creating the ‘extreme waste’ of dismantling and rebuilding the Pipeline,” the Corps said.

The agency added that removing or temporarily shutting down the line could lead to more construction work and cause more oil to be carried out of state by rail or truck, “transportation methods that entail both greater risk of spills and greater air pollution than pipeline transport.”

The Corps called it “highly likely” that the agency will be able to substantiate its past permitting decisions after conducting the environmental review.

Pipeline operator Energy Transfer maintains that the pipeline is safe and said in its own court filing that the tribes “are exceedingly unlikely to suffer any harm if DAPL continues operating” while the study is underway.

Boasberg in March ordered the Corps to conduct the review after concluding that “too many questions remain unanswered” after the agency’s previous effort to revisit several issues pertaining to the easement it granted the pipeline, which started pumping oil from North Dakota to Illinois in June 2017. The judge pointed to questions the tribe has raised about the pipeline’s leak detection systems and a worst-case spill scenario, among other concerns.

Three years ago when he asked for the Corps to revisit some parts of its initial environmental analysis, he allowed the pipeline to continue operating.

In court documents the state of North Dakota filed last month, officials argued that shutting down the pipeline “would result in a serious reduction in economic output in North Dakota and corresponding loss of tax revenue to the state.” They estimate the state has collected $317 million in additional oil production tax revenue since 2017 as a result of the pipeline operating. The revenue is the product of decreased transportation costs for Bakken crude and higher prices for the oil as it eventually makes its way to the Gulf Coast for sale, according to the state.

The state said a shutdown could prompt producers to idle wells as rail capacity would need to ramp up, and it could give producers a reason to move their drilling plans to other states.

Standing Rock, meanwhile, contends that pipeline supporters have overstated any potential disruption, particularly now that the coronavirus pandemic has upended the oil industry.

“No such change is going to occur, as a precipitous collapse in oil prices, demand, and production has fundamentally altered the equation,” the tribe said.

State officials estimate that North Dakota oil production has dropped below 1 million barrels per day and that producers have idled more than 7,000 of the state’s 16,000 wells amid the price collapse.

Oil production has dropped by roughly the capacity of Dakota Access, 570,000 barrels per day, which means the closure of the pipeline “would not result in any noticeable change in oil transportation through other options (like rail and other pipelines),” Standing Rock said.

The tribe added that oil tax revenue and oil patch jobs have already collapsed during the pandemic, conditions “unlikely to recover for years.”

In the two months since Boasberg ordered the environmental review, a number of other entities have weighed in on whether Dakota Access should remain operational. Attorneys general from 14 states filed a brief earlier this month urging the judge to keep the pipeline running. This week, three dozen Democratic members of Congress submitted a brief in favor of shutting down the pipeline.

Standing Rock’s legal challenge is playing out while the company seeks to nearly double the pipeline’s capacity to handle 1.1 million barrels per day. Energy Transfer secured approval from the North Dakota Public Service Commission earlier this year to build a pump station in Emmons County to add more horsepower along the line as part of the expansion effort.

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