BISMARCK — A federal appeals court upheld a ruling Tuesday, Jan. 26, requiring an additional environmental review of the Dakota Access Pipeline, a decision that could escalate pressure on the embattled project to shut down even as the court stopped short of mandating this step itself.
A panel of three judges for the U.S. District Court of Appeals from the District of Columbia Circuit unanimously agreed with a previous ruling that DAPL's operations at its Missouri River crossing near the Standing Rock Sioux Reservation are illegal, requiring the U.S. Army Corps of Engineers to proceed with an extensive review of potential environmental hazards at that location.
And though the court cleared the pipeline to keep running, the decision leaves an open path for the newly inaugurated President Joe Biden to shut it down.
"It's a very significant win for the tribes, and it affirms what we've been saying since 2016," said Jan Hasselman, an attorney representing Standing Rock. "The ball is now in the Biden administration's court."
The decision is another blow to Dakota Access in a winding legal battle that has left its fate in limbo for several years and which has escalated with the start of Biden's term and his progressive climate agenda. A pending lower court decision could still shut down the pipeline through legal channels, and early moves from the Biden administration have prompted speculation about his intentions for Dakota Access.
On Biden's first day in office, he signed an executive order canceling the permit for the controversial Keystone XL pipeline, a move that many environmental groups have taken as a signal of the new president's willingness to put a stop to operations of Dakota Access as well.
Still, supporters of the pipeline praised the court's decision to stand by a prior ruling that a lower court overstepped in calling for the immediate stoppage to Dakota Access operations last July.
"I think the big point is that the court did not rule that DAPL is not safe," said Ron Ness, president of the North Dakota Petroleum Council, who said that turning off an operating pipeline like Dakota Access would be a more extreme step than Biden's action against Keystone XL, which is still under construction. "The question is, does the Biden administration really want to cripple America's energy infrastructure and increase costs on consumers?"
Responding to Tuesday's ruling, Sen. Kevin Cramer, R-N.D., also called on Biden not to interfere with the pipeline. "This is not another opportunity to wage war on North Dakota’s energy producers," he said in a statement.
Dakota Access has been at the center of heated conflict pitting environmentalist and Indigenous groups against oil industry leaders since its construction sparked massive protests in 2016 and 2017. Opponents object to the pipeline's crossing beneath Lake Oahe, an important water source for the Standing Rock Tribe, just off of the reservation.
And turnover in the White House has swung the status of the pipeline back and forth before. Responding to public pressure, President Barack Obama withheld a final permit from the pipeline near the end of his presidency in 2016, a decision that President Donald Trump promptly reversed at the start of his administration.
Hoping for yet another reversal under the new presidency, activist calls for Biden to stop the pipeline with executive action have picked up momentum in the last few weeks. Standing Rock and other tribal groups appealed to Biden in a letter the day before his inauguration, calling for a DAPL shutdown and consultation between tribal nations and the federal government about alternatives to the pipeline.
"We look forward to your swift action on this important issue," wrote Standing Rock Chairman Mike Faith and other tribal leaders. "It is beyond time for the United States to fulfill the promises that it made in the Treaties and stop the illegal trespass of our lands and waters."
Hasselman stressed that Biden could move quickly to stop the pipeline with the authority affirmed by the new court ruling.
"They don't need to set up a commission to study this. They don't need to go through a bunch of paperwork. It's a piece of paper," he said. "They just need to tell them to shut it down."
Aside from potential action in the White House, the pipeline's status in the federal courts is still up in the air. District Judge James Boasberg, who issued the original shutdown order last summer, is considering a separate motion by Standing Rock calling on him to stop the pipeline's operations under different legal objections.
Neither the Army Corps nor Energy Transfer Partners, the pipeline's parent company, immediately responded to requests for comment on the new ruling. But should Energy Transfer choose to appeal the decision, they would elevate the DAPL dispute up to the U.S. Supreme Court.
The Army Corps' additional environmental review of Dakota Access began in September and is expected to take up to 13 months.
Dakota Access 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 reporter Adam Willis, a Report for America corps member, at firstname.lastname@example.org.