Dakota Access Case Could Sour Future Pipeline Plans

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By Charles Kennedy

The U.S. Army Corps of Engineers has asked an appeals court to reverse a lower court’s ruling vacating the permit of the Dakota Access oil pipeline to operate, arguing that such ruling creates “impossible” standards that could scupper future major infrastructure projects.

A federal judge ruled on July 6 that the Dakota Access Pipeline, in operation since 2017, must be emptied and shut down by August 5, until a new comprehensive environmental review is complete. The United States District Court for the District of Columbia said that the Army Corps of Engineers had violated the National Environmental Policy Act (NEPA) when it gave a permit to the pipeline to build beneath Lake Oahe.

Earlier this month, a U.S. appeals court ruled that the Dakota Access can stay open and should not be emptied of crude, but it did order an expedited schedule for the parties to submit briefs over whether a new environmental impact statement would be needed for the pipeline.

In its brief to the U.S. Court of Appeals for the District of Columbia Circuit, lawyers for the Army Corps of Engineers said that “If not corrected, the district court’s decision will create a new, heightened standard of judicial review that will be impossible for agencies to meet as they consider vital infrastructure projects that excite opposition from some sector of society,” as carried by Bloomberg Law.

According to the Army Corps, those impossible standards would not only discourage investment in major infrastructure, but they would also waste government resources.

The Army Corps argues that the district court – which ordered Dakota Access shut down and the Army Corps to carry out a new, more comprehensive, environmental assessment review – applied the “wrong legal standard” in the precedent it used to vacate the permit for the 570,000-bpd oil pipeline that carries oil from the Bakken/Three Forks area in North Dakota to Patoka, Illinois.

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