Bar Exams in the Pandemic JURIST Digital Scholars
Federal court denies motion to reconsider emptying of Dakota Access Pipeline
© WikiMedia (Tony Webster)
Federal court denies motion to reconsider emptying of Dakota Access Pipeline

Judge James E. Boasberg, of the US District Court for the District of Columbia, denied an emergency motion by Dakota Access, LLC on Tuesday to stay his July 6 order directing the company to empty the Dakota Access pipeline (DAPL) within 30-days.

Since July 2016, the Standing Rock Sioux and Cheyenne River Sioux Tribes, along with several environmental groups, have challenged the validity of the federal permits which allowed the DAPL to carry oil under Lake Oahe, the main source of drinking water for the nearby tribes. Judge Boasberg’s July 6 opinion noted that the “U.S. Army Corps of Engineers had violated the National Environmental Policy Act [NEPA] when it granted an easement to Defendant-Intervenor Dakota Access, LLC to construct and operate a segment of that crude-oil pipeline running beneath the lake.” The violation occurred “because the Corps had failed to produce an Environmental Impact Statement [EIS] despite conditions that triggered such a requirement.” This failure resulted in the matter being remanded to the Corps back on June 14, 2017 for the preparation of an EIS and a separate briefing on the appropriate interim remedy.

However, over the years following the remand, the parties continued to battle over whether an EIS was required, each side moving for summary judgment. Ultimately, Judge Boasberg held in his July 6, 2020 opinion that the permits should be vacated pending the remand to the Corps. Under the test articulated in Allied-Signal, Inc. v. Director, Division of Taxation, the court reasoned that vacatur was the only appropriate remedy “given the seriousness of the Corps’ NEPA error, the impossibility of a simple fix, the fact that Dakota Access did assume much of its economic risk knowingly, and the potential harm [to nearby Tribes] each day the pipeline operates.”

Dakota Access filed a notice of appeal immediately following the July 6 order and according to the latest docket updates, “the Court will set a status hearing to discuss scheduling as soon as it receives Dakota Access’s motion for a stay pending appeal.”