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US Supreme Court declines to hear Dakota Access appeal

The country's high court has refused to hear an appeal by developers of the Dakota Access Pipeline seeking to overturn a mandated environmental review of their project.

Crews work on the Dakota Access Pipeline near Williston, North Dakota, on July 29, 2016. Eric Hylden / Forum News Service
Crews work on the Dakota Access Pipeline near Williston, North Dakota, on July 29, 2016.
Eric Hylden / Forum News Service
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BISMARCK — The U.S. Supreme Court has declined to hear an appeal by developers of the Dakota Access Pipeline seeking to overturn a mandated environmental review of their project, closing a years-long chapter in the legal fight over the pipeline.

The country’s highest court said Tuesday, Feb. 22, that it would not take up the case of Dakota Access LLC, which was looking to overturn a court-ordered environmental review of its pipeline's Missouri River crossing just off the Standing Rock Sioux Reservation in North Dakota.

Justices on the Supreme Court provided no explanation for their refusal to hear the appeal, but the high court is extremely selective in the cases it chooses to take up.

Even as the appeal awaited an answer from the Supreme Court, the federal environmental review of Dakota Access has pushed ahead. The U.S. Army Corps of Engineers began the process in the fall of 2020, and though its end date has been delayed several times, a draft version of the review could be released in the coming weeks.

Jan Hasselman, an attorney representing the Standing Rock Sioux Tribe against Dakota Access, celebrated the decision while again calling for political action against the pipeline by President Joe Biden's administration.

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“The litigation over the pipeline is over, but the fight continues. We call on the administration to close the pipeline until a full safety and environmental review is complete," Hasselman said in a statement. "DAPL never should have been authorized in the first place, and this administration is failing to address the persistent illegality of this pipeline."

Standing Rock first sued over Dakota Access in 2016, before its construction was completed, and the tribe has long argued that operations of the pipeline endanger their water supply. In addition to court challenges, the tribes and environmental groups have lobbied Biden to shutter the pipeline, but so far the Democratic administration has declined to intervene.

A spokesperson for Energy Transfer, the parent company to Dakota Access, declined to comment on the Supreme Court's decision. A spokesperson for the Army Corps did not immediately respond to a request for comment.

In its petition to high court, Dakota Access said the additional review is unnecessary, arguing the precedent set by the lower court's order threatens to needlessly delay future infrastructure projects.

"This case carries enormous ramifications for the oil industry, its workers, and the nation," the company told the Supreme Court. The lower court's order, the company said, "leaves DAPL at a significant risk of being shut down, which would precipitate serious economic and environmental consequences."

Both Standing Rock and the Army Corps opposed Dakota Access' appeal to the Supreme Court . The tribe argued that the lower court's order left "no question that merits review" by the high court, while the federal agency conducting the environmental review said that once it has completed the assessment by late this year, questions of whether it was required to do so would be largely moot.

The completion of the Army Corps' environmental review could reignite litigation over the pipeline's operations. Standing Rock has argued that the federal agency is overseeing a biased process and last month withdrew its status as a cooperating agency in the review.

In the spring of 2020, a federal district court voided Dakota Access' permit at its Missouri River crossing and later ordered that the pipeline shut down until the completion of a thorough environmental review. That shutdown order was eventually overruled by a higher court, but the environmental review has stood.

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Protests over Dakota Access drew the global spotlight for months during its construction in 2016 and 2017.

The pipeline has carried oil from North Dakota’s Bakken region to market since operations began in 2017. Energy Transfer is in the process of expanding the pipeline’s capacity and most recently said it can carry up to 750,000 barrels of oil a day.

Readers can reach Forum reporter Adam Willis, a Report for America corps member, at awillis@forumcomm.com.

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