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Federal judge orders environmental review of Dakota Access pipeline
Spencer S. Hsu, the Washington Post
Jun. 14, 2017 9:41 pm
A federal judge in Washington, D.C., on Wednesday ordered the Trump administration to conduct further environmental reviews of the Dakota Access pipeline but stopped short of halting oil-pumping operations pending further hearings beginning June 21.
U.S. District Judge James Boasberg handed a limited victory to Native American tribes in North Dakota that had challenged the administration's effort to speed the project, and his dense, 91-page opinion directed both sides to appear before him next Wednesday to decide next legal steps.
While the U.S. Army Corps of Engineers 'substantially complied” with federal environmental laws, Boasberg wrote, 'it did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline's effects are likely to be highly controversial.”
Boasberg's decision comes just weeks after Dallas-based Energy Transfer Partners had begun pumping crude oil through the 1,170-mile line carrying North Dakota oil through South Dakota and Iowa to a distribution point in Illinois.
'Whether Dakota Access must cease pipeline operations” while the additional reviews are done 'presents a separate question of the appropriate remedy, which will be the subject of further briefing,” Boasberg ruled.
David Debold, an attorney for Dakota Access, and Daryl Owen, a lobbyist representing Energy Transfer Partners, did not immediately respond to emailed requests for comment.
Four Sioux tribes in the Dakotas have asked the court to shut down oil-pumping operations. Boasberg in February rejected emergency requests by the Standing Rock and Cheyenne River Sioux tribes grounded in cultural preservation and religious freedom claims, the latter of which was based on the tribes' argument that the pipeline would desecrate the Missouri River and Lake Oahe, integral parts of their religious practices.
The newest battle was triggered by one of President Donald Trump's early executive orders, directing the corps to expedite approval. The tribes and environmental groups said the administration's actions violate administrative procedure and treaty obligations.
Jan Hasselman, an attorney with the environmental group Earthjustice and lawyer for the Standing Rock Sioux Tribe, called the ruling 'a significant vindication” of the tribe's position, recalling how Trump in a speech last week in Cincinnati took credit for the project's opening, saying 'Nobody thought any politician would have the guts to approve that final leg. I just closed my eyes and I said: ‘Do it.'”
Hasselman said, 'That is a perfect metaphor for this president and this project: they have closed their eyes to the impact of oil spills on some of the poorest people in the nation. It wasn't right, and now we know it wasn't lawful.” However, he acknowledged that what the judge decides to do about it 'remains to be seen.”
The pipeline has been the focus of legal maneuvering and protests for months. Authorities reported 761 arrests resulting from protests before the pipeline began commercial operations June 1.
Opponents, who say the pipeline endangers their water supplies, said leaks began even earlier. As preparations for service began, the pipeline and a feeder line leaked more than 100 gallons of oil in western North Dakota in separate incidents in March, and the Dakota Access line leaked 84 gallons of oil in northern South Dakota in April. Tribal leaders say their environmental concerns have grown more urgent now that the pipeline is operational.
Boasberg's opinion focused on tribes' call for the courts to declare the administration's actions illegal, arbitrary and capricious.
In late 2016, President Barack Obama ordered the Army Corps of Engineers, which controls the river and lake, to ask Energy Transfer Partners, the pipeline company, to submit environmental impact statements on alternative routes. But Trump on Jan. 24 ordered the engineers to speedily issue the final easement the company needed to finish construction in the national interest. On Feb. 8, the Army said it no longer needed an environmental-impact statement and issued the easement.
Boasberg said that while federal law typically allows a court to order a halt to operations, such a move in the Dakota pipeline case 'would carry serious consequences that a court should not lightly impose.” In such cases, he wrote, 'courts have discretion to depart from that presumptive remedy,” calling for further legal arguments.