A judge on Monday ordered the Dakota Access pipeline shut down for additional environmental review more than three years after it began pumping oil — handing a victory to the Standing Rock Sioux Tribe and delivering a blow to President Donald Trump’s efforts to weaken public health and environmental protections his administration views as obstacles to businesses.
In a 24-page order, U.S. District Judge James Boasberg in Washington, D.C., wrote that he was “mindful of the disruption” that shutting down the pipeline would cause, but that it must be done within 30 days. Pipeline owner Energy Transfer plans to ask a court to halt the order and will seek an expedited appeal, spokeswoman Vicki Granado said.
The order comes after Boasberg said in April that a more extensive review was necessary than what the U.S. Army Corps of Engineers already conducted and that he would consider whether the pipeline should be shuttered during the new assessment.
“The Court does not reach its decision with blithe disregard for the lives it will affect,” Boasberg wrote Monday.
“Yet, given the seriousness of the Corps’ NEPA (National Environmental Policy Act) error, the impossibility of a simple fix, the fact that Dakota Access did assume much of its economic risk knowingly, and the potential harm each day the pipeline operates, the Court is forced to conclude that the flow of oil must cease,” he added.
The findings may challenge the legal footing for the Trump administration's most momentous environmental rollbacks. Trump surrounded himself with industry leaders and workers in hard hats this January when he announced plans to overhaul the rules for enforcing NEPA.
The Dakota Access pipeline was the subject of months of protests in 2016 and 2017, sometimes violent, during its construction near the Standing Rock Sioux Reservation that straddles the North Dakota-South Dakota border. The tribe pressed litigation against the pipeline even after it began carrying oil from North Dakota across South Dakota and Iowa and to a shipping point in Illinois in June 2017.
The $3.8 billion, 1,172-mile pipeline crosses beneath the Missouri River, just north of the reservation. The tribe draws its water from the river and fears pollution.
“This pipeline should have never been built here. We told them that from the beginning,” Standing Rock Sioux Chairman Mike Faith said in a statement.
Texas-based Energy Transfer contends proper procedures were followed in granting the original easement for the pipeline, Granado said.
“The economic implications of the Judge’s order are too big to ignore and we will do all we can to ensure its continued operation,” she said. “Billions of dollars in tax and royalty revenue will be lost by state, local and tribal governments in North Dakota, South Dakota, Iowa and Illinois. Farmers will suffer as crude transportation will move to rail, displacing corn, wheat and soy crops that would normally be moved to market. Ironically, the counties along these rail lines will face increased environmental risks due to the increased amount of crude oil traveling by rail.”
Ron Ness, president of the North Dakota Petroleum Council, decried what he called a “shocking” ruling and noted that the pipeline is moving 570,000 barrels of Bakken oil a day.
Before the coronavirus pandemic devastated the U.S. oil industry, daily oil production in North Dakota — the nation's No. 2 oil producer behind Texas — was at a near-record 1.45 million barrels daily. The state's output slipped to below 1 million barrels daily in May amid low energy prices and sparse demand.
Permits for the project were originally rejected by the Obama administration, and the Army Corps of Engineers prepared to conduct a full environmental review. In February 2017, after Trump took office, the Corps scrapped the review and granted permits, concluding that running the pipeline under the Missouri River posed no significant environmental issues.
The Corps said that opinion was validated after an additional year of review, as ordered by Boasberg, an Obama appointee, in 2017.
Boasberg ruled then that the Corps “largely complied” with environmental law when permitting the pipeline but ordered more review because he said the agency did not adequately consider how an oil spill under the Missouri River might affect the Standing Rock Sioux’s fishing and hunting rights, or whether it might disproportionately affect the tribal community.
Atlantic Coast Pipeline
In another pipeline decision, the developers of the long-delayed, $8 billion Atlantic Coast Pipeline announced the cancellation of the multi-state natural gas project Sunday, citing uncertainties about costs, permitting and litigation.
Despite a victory last month at the United States Supreme Court over a critical permit, Dominion Energy and Duke Energy said in a news release that "recent developments have created an unacceptable layer of uncertainty and anticipated delays" for the 600-mile Atlantic Coast Pipeline project designed to cross West Virginia and Virginia into North Carolina.
The companies said a recent pair of court rulings that have thrown into question a permitting program used around the nation to approve oil and gas pipelines and other utility work through wetlands and streams presented "new and serious challenges."
“This new information and litigation risk, among other continuing execution risks, make the project too uncertain to justify investing more shareholder capital,” the news release said.
Credit: Steve Helber
Credit: Steve Helber
The massive infrastructure project, announced with much fanfare in 2014, had drawn fierce opposition from many landowners, activists and environmental advocates, who said it would damage pristine landscapes and harm wildlife. Getting the project built would have involved tree removal and blasting and leveling some ridgetops as the pipe, 42 inches in diameter for much of its path, crossed mountains, hundreds of water bodies and other sensitive terrain and burrowed underneath the Appalachian Trail.
Opponents also questioned whether there was sufficient need for the gas it would carry and said it would further encourage the use of a fossil fuel at a time when climate change makes a shift to renewable energy imperative.
Legal challenges brought by environmental groups prompted the dismissal or suspension of numerous permits and led to an extended delay in construction. The project was years behind schedule, and the anticipated cost had ballooned from the original estimate of $4.5 billion to $5 billion.
Reaction poured in Sunday from the project’s opponents, who lauded the demise of the project.
“If anyone still had questions about whether or not the era of fracked gas was over, this should answer them. Today is a historic victory for clean water, the climate, public health, and our communities,” Sierra Club Executive Director Michael Brune said in a statement.
The project’s supporters said the pipeline would create jobs, help aid the transition away from coal and lower energy costs for consumers. Economic development officials in distressed parts of the three states it would run through had hoped that the greater availability of natural gas would help draw heavy manufacturing companies.
“Unfortunately, today’s announcement detrimentally impacts the Commonwealth’s access to affordable, reliable energy,” the Virginia Chamber of Commerce said in a statement. “It also demonstrates the significant regulatory burdens businesses must deal with in order to operate.”
U.S. Energy Secretary Dan Brouillette said in a statement the project was killed by the “well-funded, obstructionist environmental lobby.”
“The Trump Administration wants to bring the benefits of reliable and affordable energy of all kinds to all Americans,” Brouillette said. “Unfortunately, the same can’t be said for the activists who killed this project.”
Separately, Dominion, which is headquartered in Richmond, Virginia, and serves more than 7 million customers in 20 states, announced it had agreed to sell "substantially all" of its gas transmission and storage segment assets to an affiliate of Berkshire Hathaway. The transaction was valued at $9.7 billion, the company said.
The assets involved in the sale include more than 7,700 miles of natural gas storage and transmission pipelines and about 900 billion cubic feet of gas storage that Dominion currently operates, the company said.
Duke, which is headquartered in Charlotte, North Carolina, is one of the country’s largest energy holding companies.
Duke has previously pledged to reach net-zero carbon emissions from its electric generation by 2050, and Dominion has committed to net-zero greenhouse gas emissions by the same year.
A third partner in the Atlantic Coast Pipeline, Southern Company, sold its small stake in the project earlier this year to Dominion, the lead developer. Dominion had asserted its commitment to seeing the project through as recently as mid-June, when it asked federal regulators for an extension to get the project into service.
“We regret that we will be unable to complete the Atlantic Coast Pipeline,” Dominion CEO Tom Farrell and Duke CEO Lynn Good said in a joint statement. “For almost six years we have worked diligently and invested billions of dollars to complete the project and deliver the much-needed infrastructure to our customers and communities.”
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