August 11, 2020


By Neal A. Shipman

Farmer Editor

North Dakota got some good news last week when a U.S. Court of Appeals vacated a District Court judge’s July ruling that would have required Energy Transfer, the owner of the Dakota Access Pipeline (DAPL), to shut down the pipeline and empty its contents by Aug. 5.
In making its ruling, the appeals court ruled that U.S. District Judge James Boasberg did not follow established legal tests before issuing a shut-down order in a national environmental policy case.
Obviously, the ruling is very good news for North Dakota and the state’s oil industry that relies on DAPL to carry over 500,000 barrels of crude oil a day, 1,200 miles from western North Dakota to Illinois. So until the case makes its way through the court system, the much-needed pipeline will continue to operate.
And North Dakota’s Gov. Doug Burgum, as well as our state’s congressional delegation were quick to welcome the appeal court’s decision.
“Shutting down this state-of-the-art pipeline would have had a devastating effect on North Dakota’s economy and a chilling effect on our nation’s ability to modernize its critical infrastructure for the environmental health and energy security of all Americans,” stated Burgum, while U.S. Senator Kent Conrad called the decision another victory in the fight for North Dakota energy.
They are right. The DAPL pipeline is the safest and most economical way to transport oil when compared to railroad cars or trucks.
And having DAPL being able to continue to operate is good news for North Dakota.
But there was also some bad news in last week’s appeals court’s ruling as the three-judge panel rejected a request by the U.S. Army Corps of Engineers to also vacate Boasberg’s decision to vacate an easement that would allow the Dakota Access Pipeline to cross the Missouri River at Lake Oahe. Boasberg also ordered the Corps to prepare an environmental impact statement (EIS) regarding the easement for the pipeline.
And that part of the appeal’s court ruling poses a unique challenge.
During the permitting process for the pipeline, the U.S. Army Corps of Engineers found that it did not need to complete a full-blown environmental impact statement and issued the permit. Now, years later with the pipeline running, the court is once again questioning that decision.
So while Energy Transfer is free to continue to operate DAPL, a couple of questions loom over the pipeline.
First, what will happen if the Corps of Engineers is forced to do an EIS? And if that does become a requirement, how would those findings impact the pipeline’s future operations?
Secondly, and equally important, is what will happen to the pipeline if the court system should rule that the company must vacate its easement where the pipeline crosses the Missouri River near the Standing Rock Indian Reservation? If that is the decision that the court system ultimately rules, it could require Energy Transfer to be forced to relocate a portion of the pipeline farther north of the Standing Rock Indian Reservation or to scuttle the pipeline if another easement cannot be obtained.
In the end, while last week’s decision was good for North Dakota, the final verdict is still going to be months away.