BISMARCK — President Joe Biden's administration said in a federal court hearing Friday, April 9, that it would not force an immediate shutdown of the Dakota Access Pipeline during an environmental review, likely leaving the fate of the embattled project in a judge's hands.
The much-anticipated announcement came as short-term relief to a North Dakota oil industry that has been on edge for months awaiting clarity on the new Democratic White House's intentions for the pipeline. It's also a blow to environmental and Indigenous groups who have seen Dakota Access as a test of the new administration's climate priorities.
Though the administration was mum on the years-long Dakota Access dispute in the first months of Biden's presidency, officials staked an initial position in Friday's status hearing before a federal judge. A Department of Justice attorney told the court that the U.S. Army Corps of Engineers does not have plans to shut the pipeline down "at this time," though he said that could change based on their ongoing environmental review and consultations with North Dakota and tribal officials.
U.S. District Judge James Boasberg told attorneys that he was "a little surprised" that the Army Corps hadn't reached a more definitive position at this point. The federal agency was previously scheduled to present its plans for the pipeline before Boasberg in February, but the judge granted them an extension at the time.
The further delay from the Biden administration may leave the fate of Dakota Access to Boasberg, the same federal judge who ordered an immediate shutdown of Dakota Access last summer. That order was overruled by a federal appellate court, but the tribes opposed to the pipeline filed a separate shutdown motion before Boasberg last fall. The judge's ruling on that motion could come down this spring.
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And while the Army Corps left open the possibility for a shutdown, Jan Hasselman, an attorney for the Standing Rock Sioux Tribe, said the new administration had essentially arrived at the same conclusion as the fossil fuel friendly Donald Trump White House.
"I think it's important to convey to the court just how deeply disappointed the tribe is to hear that news," Hasselman said in the hearing. "The company gets to keep the benefits of operating that pipeline that was never properly authorized while the community has to bear the consequences. It's not right."
The Standing Rock Sioux Tribe has opposed Dakota Access since its construction began in 2016 and argues that the pipeline's operations endanger their water supply at its Missouri River crossing just off their reservation.
Many observers had billed the Friday hearing as a moment of truth for the new administration's intentions for the controversial pipeline. Two federal courts in the last year agreed that Dakota Access is operating without a key legal permit at the Missouri River crossing, and in January an appellate court deferred to the Army Corps to decide how to handle the pipeline's tenuous legal status.
The Biden White House came out of the gates with several warning shots to the oil industry, and calls for the administration to take swift action against Dakota Access were energized by the president's Day One decision to cancel a permit for the not-yet-completed Keystone XL oil pipeline.
But North Dakota officials and leadership from the Mandan, Hidatsa and Arikara Nation, an oil-producing American Indian tribe in North Dakota, each sent letters to the Army Corps in recent weeks requesting meetings before any drastic action is taken regarding the pipeline. Department of Justice attorney Ben Schifman told Boasberg that the Army Corps wants an opportunity to take those consultations into account as it decides how to proceed.
"It really is the case that the Corps is in an essentially continuous process of evaluating" the safety of pipeline operations, Schifman said.
This decision not to intervene was celebrated by North Dakota officials on Friday.
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"This state-of-the-art pipeline is critical to North Dakota’s energy industry and our nation's energy independence," said Gov. Doug Burgum, in a statement. The Republican governor praised the agency's decision to seek consultation with the state and MHA Nation and urged Boasberg not to intercede. "The Corps should be allowed to complete its consultation without court intervention," Burgum said.
An attorney for Energy Transfer, the parent company to Dakota Access, also argued Friday that the economic costs of a shutdown have grown since Boasberg's order last summer, noting that oil markets are rebounding with the end of the pandemic in sight. Boasberg gave the pipeline company 10 days to come back with its updated case against the shutdown.
Though Hasselman said he doesn't see the latest development as the end of the road for the political possibility of shutting down Dakota Access, he told reporters after the hearing that the Biden administration came up short of its tribal and climate commitments on Friday.
"Is the President willing to stand behind the promises he's made and the rhetoric he's espoused on tribal sovereignty and environmental justice?" Hasselman asked. "Right now, we're getting a disappointing answer to that question."
Friday's hearing also shed new light on the timeline of the pipeline's environmental review, which formally kicked off last September. While there is no deadline for completion of the process, Schifman told the court that the Army Corps anticipates it will take a total of 18 months.
Dakota Access has been a flashpoint in debates over the country's energy and environmental future since protests over its construction near the Standing Rock reservation drew global attention in 2016 and 2017. The pipeline has the capacity to carry 570,000 barrels of oil a day from North Dakota's Bakken region to market around the country, and state regulators and pipeline operators have looked to nearly double that load over the next few years.
Readers can reach Forum News Service reporter Adam Willis, a Report for America corps member, at awillis@forumcomm.com.
