BISMARCK — Monday’s federal court ruling that called for a complete halt to operations of the Dakota Access Pipeline until the completion of a thorough environmental review was a rare victory for the Standing Rock Sioux Tribe, as well as a massive blow to North Dakota’s already-hamstrung oil industry.
But this chapter in the DAPL chronicles is not over yet. The pipeline operator, Dakota Access LLC, is appealing the decision, a response that elevates this consequential court case to the District Court of Appeals for the District of Columbia.
Monday's ruling by U.S. District Judge James Boasberg, appointed by George W. Bush and promoted by Barack Obama, stated that the Army Corps of Engineers violated an important statute of the National Environmental Policy Act (NEPA) in its assessment of DAPL.
Consequently, Boasberg decided in a shocking opinion that DAPL must cease operations until the completion of an environmental impact statement that could take more than a year.
But will Boasberg’s ruling hold up in appeal? There’s never a sure bet when it comes to America’s highest courts, but a legal analysis of Monday’s decision may shed some light on what to expect next.
Is the DAPL ruling solid?
Before digging into Boasberg's argument, it’s important to note that the court of appeals will respond to a different question than the one Boasberg answered in his trial court. When it comes to the facts of the ruling, the appellate court does not have the jurisdiction to second guess what Boasberg has already decided. Regardless of how Dakota Access may feel about Boasberg's conclusion that its pipeline is running illegally, it’s too late for them to argue that there was no environmental violation at all.
So what’s an appellant to do? Instead of responding to attacks on the legality or legitimacy of their pipeline, said Jim Grijalva, a professor of environmental tribal law at the University of North Dakota School of Law, Dakota Access will have to argue that Boasberg abused his discretion, that he was out of line in coming to his conclusion in the first place.
This is not an advantageous starting post.
“When you appeal because you don’t like the remedy ordered, you generally have an uphill battle,” Grijalva noted. North Dakota Attorney General Wayne Stenehjem, whose office is filing an amicus brief to endorse Dakota Access, conceded a similar point in an interview with The Forum: “Certainly I wish we were arguing on the other side, having a judge who’s refused to issue that vacatur, but that’s not what we have.”
Making matters more complicated for Dakota Access is the possibility that the new judges find the company’s position less credible since it continued to operate the pipeline despite environmental law. “If I tell you that it’s not lawful for you to move forward, but you say you think you can fix that in the future and you want to invest a billion dollars in building this thing anyway,” Grijalva explained, “it’s kind of hard to complain later that this is having an economic impact on you when you knew all along that this was a likely result.”
Jared Margolis, an environmental lawyer with the Center for Biological Diversity, said this amounted to a “real assumption of risk,” as well as “self-inflicted harm,” on the part of Dakota Access. If the court of appeals wants to preserve the integrity of these NEPA statutes, they’re likely to see the behavior of Dakota Access as defiant. “If you allow that to happen — if you allow them to build it before they comply with the law, and there’s no repercussions of that — then what’s the point of the law?” asked Margolis. “They’ll always try to game the system by building as much as they can before they get caught.”
And while Stenehjem argues that it’s impossible to build oil infrastructure that isn’t dogged by similar environmental lawsuits (“Litigation is as sure to follow any kind of development as night follows day,” he said), that fact may not be enough to counter the reality that the law is the law, regardless of how frequently it’s broken. It certainly wasn’t enough to convince Boasberg, who wrote that, “When it comes to NEPA, it is better to ask for permission than forgiveness.”
How would a shutdown affect ND oil?
If DAPL does turn off, the economic consequences for North Dakota will be undeniably steep. And while Dakota Access will have a tough case ahead in the appeal, its clearest path to a reversal is through drawing a picture of economic Armageddon in the case of a stoppage.
The district court ruling hinged on weighing an environmental violation against economic consequences, and Boasberg readily conceded that the prospect of economic fallout was the hardest part of his decision. This may provide a vulnerability for the Dakota Access lawyers in the appeal. “The weight that he gave to the facts is something that goes to the law, and we could show that he was in error by not giving enough emphasis to the economic harm,” Stenejhem said. “We are going to emphasize that the judge did not fully consider the horrendous impact that this will have on (North Dakota).”
The consequences that Stenejhem references could begin to take hold fairly quickly after a DAPL shutdown. In an amicus brief filed by the state Department of Mineral Resources, director Lynn Helms wrote that a DAPL stoppage would wipe out 600-750 jobs on North Dakota drilling rigs, plus another 11 to 14 jobs per month in lost drilling work down the line.
The state would also have to find a new avenue to transport the 500,000 barrels of oil that enter DAPL each day. And while much of this work would need to be shifted onto railroads, matching DAPL’s productivity with rail could take as long as two years, by Helm’s estimation. And, if only 300,000 barrels of DAPL’s daily flow were shifted to rail, a somewhat more realistic expectation, Helms estimated that the short-term shock could eliminate nearly 9,000 jobs across the state's oil industry, with permanent job losses settling between 5,000 and 7,000.
A DAPL shutdown is likely to have ripple effects across the adjacent businesses like hotels, airports, and real estate as well.
This portrayal of economic devastation is the case that Dakota Access, the state of North Dakota and other amicus parties are expected to present to the court of appeals.
What comes next?
For several years, the Standing Rock Sioux Tribe and other tribes have battled Dakota Access in court, contending that the underground pipeline puts tribal water resources in jeopardy.
The $3.8 billion pipeline project, which crosses under the Missouri River near the tribe's reservation, prompted protests from tribal members and climate activists in 2016 and 2017. The 1,172-mile pipeline has been transporting crude oil from the Bakken formation in western North Dakota to central Illinois since May 2017.
Dakota Access and the North Dakota oil industry are anxious to keep oil moving, but appeals can make for long, drawn out processes. The company has already sought to stay Monday's order and continue running oil while the appeals court hashes out a verdict, but Boasberg denied that motion on Thursday.
On this score, the pipeline may already be playing with fire. After Boasberg’s order, a spokeswoman for Energy Transfer Partners, the pipeline’s parent company, told The Forum the company would not be shutting down the line and would continue taking orders to transport oil. But the company later walked the statement back, saying it had no intention of violating the judge's order.
Dakota Access filed another motion Friday, this time asking the appeals court to put the ordered shutdown on hold. The higher court could grant the request, but even then, long-term answers on the fate of DAPL are many months away.
Readers can reach Forum reporter Adam Willis, a Report for America corps member, at firstname.lastname@example.org.