Dakota Access Still Could Face Closure

OMAHA (DTN) -- A federal court is moving closer to temporarily shutting down Dakota Access pipeline operations until future court action plays out.

The U.S. Court of Appeals for the District of Columbia Circuit gave the U.S. Army Corps of Engineers until Aug. 31 to detail steps taken by the Corps to resolve concerns with the pipeline. The Corps has indicated in court documents it expects to have a complete plan by mid-October.

In a court order issued on Sept. 11, however, the appeals court indicated the Corps is unlikely to call for the removal or closure of the pipeline. The court said it will consider an injunction to halt operations since the pipeline does not currently have an easement.

"Although the Corps has now submitted two reports in response to this court's direction, it does not expect to have an initial answer for another month," the court said in its latest order.

"Its submissions, moreover, imply that any cessation or removal of the pipeline appears unlikely. As a result, the plaintiff tribes understandably wish the court to consider whether to issue an injunction to halt the oil flow. The court agrees that this is the wisest course. As, under any realistic briefing schedule, it would not issue an opinion before the Corps' mid-October decision, there appears no reason to wait to begin briefing until then."

A district court this summer ordered the pipeline closed as a result of permitting issues with the construction of the line dating back to 2017. On July 14, the appeals court ruled the line could remain open pending an appeal.

The court ruled on Aug. 5 that a district court overstepped when it ordered the pipeline closed and emptied of oil. The appeals court ordered the pipeline to remain open pending further court proceedings.

Several agriculture groups said in briefs filed with the appeals court at the end of July that the permanent shutdown of the pipeline would have devastating consequences for farmers.

The North Dakota Farm Bureau, North Dakota Grain Dealers Association, North Dakota Grain Growers Association, South Dakota Corn Growers Association, South Dakota Farm Bureau Federation and South Dakota Soybean Association asked the court to stay the district court ruling.

The groups are concerned closing the pipeline could drastically increase the costs of transporting commodities. According to the groups, railroads transport 72% to 82% of North Dakota's crop output.

In addition, the appeals court denied a motion to stay the district court's order to vacate the Mineral Leasing Act easement, authorizing the DAPL to cross the Missouri River at Lake Oahe.

From April 2016 to February 2017, Native American and other groups protested the construction of the pipeline running from the Bakken oil fields in western North Dakota and crossing the Missouri and Mississippi rivers to southern Illinois.

Part of the pipeline runs near the Standing Rock Indian Reservation. Protests centered on concerns about the pipeline's effect on water supplies used for irrigation, drinking water and threats to ancient burial grounds.

The appeals court ruled the Corps violated environmental law in 2017 when it allowed the pipeline owner, Energy Transfer, to build beneath South Dakota Lake Oahe.

Todd Neeley can be reached at todd.neeley@dtn.com

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