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Court slams Army Corps for skipping environmental review of Dakota Access Pipeline

Protesters demonstrate against the Energy Transfer Partners’ Dakota Access oil pipeline near the Standing Rock Sioux reservation, in Los Angeles, California, September 13, 2016. REUTERS/Lucy Nicholson

WASHINGTON (CN) — The D.C. Circuit ruled against the government Tuesday for letting developers build a massive pipeline beneath Sioux lands in the Dakotas without an environmental impact study.

It’s a win for environmentalists and a Sioux tribe called Standing Rock, and one whose full ramifications are still in flux as those parties fight in District Court for an injunction that could grind the Dakota Access Pipeline to a halt.

“We are pleased that the D.C. Circuit affirmed the necessity of a full environmental review, and we look forward to showing the U.S. Army Corps of Engineers why this pipeline is too dangerous to operate,” Standing Rock Sioux Tribe Chairman Mike Faith said in a statement. 

Oil has continued to flow through the 1,172-mile artery in the last seven months as the U.S. Army Corps of Engineers appealed U.S. District Judge James E. Boasberg’s finding that it issued Dakota Access a permit in 2016 without performing the necessary study on how crude oil running beneath Lake Oahe along the Missouri River would affect the environment.

Though Boasberg had gone so far as to order that the pipeline be emptied pending that National Environmental Policy Act review, the D.C. Circuit blocked that aspect of the ruling in August and ultimately overturned it in Tuesday’s ruling.

“The parties have identified no other instance — and we have found none — in which the sole issue before a court was whether an easement already in use (rather than a construction or operating permit) must be vacated on NEPA grounds,” U.S. Circuit Judge David Tatel wrote for a three-judge panel (parentheses in original). “That makes this case quite unusual and cabins our decision to the facts before us.”

Stretching from North Dakota to Illinois, the pipeline running beneath Lake Oahe, the main water source for the Standing Rock reservation just a half-mile away, has been in a string of legal battles since its conception. In addition to concerns that a possible spill could contaminate their drinking water, the Standing Rock tribe complain that the pipeline degrades their sacred lands. 

Though the corps performed an environmental assessment in December 2015 that found the construction would not significantly harm Lake Oahe, Judge Boasberg ruled last year, and the D.C. Circuit affirmed Tuesday, that the agency was wrong not to carry out the full environmental impact study.

Back in 2016, as the tribe’s concerns over the pipeline went largely unresolved, then-President Obama responded to public outcry by withholding a final permit and requiring additional environmental reviews. Former President Trump reversed the measure and oil began flowing in 2017. 

The Army Corps of Engineers did not immediately respond to a request for comment Tuesday.

“It may well be — though we have no occasion to consider the matter here—that the law or the Corps’s regulations oblige the Corps to vindicate its property rights by requiring the pipeline to cease operation and that the tribes or others could seek judicial relief under the APA should the Corps fail to do so,” Tatel wrote. “But how and on what terms the Corps will enforce its property rights is, absent a properly issued injunction, a matter for the Corps to consider in the first instance.”