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Court issues mixed ruling on DAPL, letting the pipeline stay open during appeal

The court noted that Dakota Access is unlikely to succeed in its case against Standing Rock, but granted temporary permission to keep the pipeline running.

d8e9d6fd97c58a29b2546fb6815794c3.jpg Eric Hylden photo
A trio of excavators move earth along the Dakota Access Pipeline route east of Williston, N.D., in late July 2016. Forum News Service file photo
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BISMARCK — A federal appeals court gave Dakota Access a green light Wednesday, Aug. 5, to keep running its pipeline during a long appeals process, granting temporary relief to a North Dakota oil industry that was bracing for the costs of a sudden shutdown.

In a much-anticipated decision, a three-member panel on the D.C. Circuit Court of Appeals put an emergency stay on the immediate shutdown of DAPL, reversing last month's order by trial court judge James Boasberg that the pipeline stop running by Aug. 5.

The decision came with a significant caveat. The appeals court stated that Dakota Access has so far failed to refute Boasberg's order for a lengthy environmental review and called on the Army Corps of Engineers to clarify whether the pipeline should be allowed to keep running in violation of environmental law.

"At this juncture, appellants have failed to make a strong showing of likely success on their claims that the district court erred in directing the Corps to prepare an environmental impact statement," the court wrote in its statement. "We expect appellants to clarify their positions before the district court as to whether the Corps intends to allow the continued operation of the pipeline notwithstanding vacatur of the easement and for the district court to consider additional relief if necessary."

Last month, Boasberg ordered DAPL to shutter operations and undergo a thorough environmental review by the Army Corps, expected to take 13 months. That order was appealed by Dakota Access and the Army Corps.


The approval of Dakota Access' emergency stay is a major win for North Dakota oil companies that have estimated they would suffer billions of dollars in losses if they were forced to halt the pipeline. North Dakota's pipeline authority estimated that a DAPL stoppage would deal a $5 hit to the price of Bakken oil, further depressing an industry that has already suffered major losses in the global oil price collapse.

Meanwhile, the decision is a disappointment for environmental activists and members of the Standing Rock Tribe, who had briefly scored a rare victory over oil producers with Boasberg's shocking order last month. In a tweet, EarthJustice lawyer Jan Hasselman, who represents Standing Rock against Dakota Access, emphasized that the announcement was "a mixed decision,” adding, "The fight continues."

Technically, the pipeline has been operating under an "administrative stay," a procedural order issued earlier this month to give the justices breathing room before settling on Wednesday's more consequential decision on the emergency stay.

North Dakota officials chimed in with expressions of approval at the court's decision. Justin Kringstad, director of the state's pipeline authority, said in a statement that the decision "will help ensure North Dakota's oil has safe and efficient transportation to major markets in the gulf coast."

Sen. Kevin Cramer, R-N.D., cheered "another victory in the fight for North Dakota energy," and wrote that, "On the day DAPL was originally ordered to be shut down and emptied, we receive another assurance the pipeline can keep playing its important part in bolstering America’s energy dominance."

Gov. Doug Burgum applauded the ruling, saying: "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."

While the appeals court likely would not have granted the emergency stay if it did not believe Dakota Access had a legitimate case to overturn Boasberg's decision, the approval of the emergency stay is not an indicator of where the court will land at the end of the appeal. James Grijalva, a professor of Native American law at the University of North Dakota School of Law, said that interpreting higher court decisions can be like reading tea leaves, and Dakota Access would be "naive" to take the approved emergency stay as a sign of the case's final outcome.

"All that means is we don't want you to have to suffer this consequence ... but you might still lose," Grijalva said. "What they're doing is they're giving you the right to appeal because that's part of the process. That doesn't mean you're going to win."


Oral arguments before the appeals court have not yet been scheduled.

Readers can reach reporter Adam Willis, a Report for America corps member, at

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