Dakota Access Pipeline (DAPL)

TGG provided expert testimony on behalf of the Standing Rock Sioux and the Cheyenne River Sioux in the legal proceedings related to the controversial Dakota Access Pipeline (DAPL). Represented by Earthjustice, the Tribes have waged a long-term legal battle to stop the pipeline, in parallel with the historic protests of the pipeline in North Dakota. Since 2016, the Tribes have argued that the US Army Corps of Engineers (USACE) should deny DAPL permits to cross the Missouri River and undertake a full environmental review. In late 2016, the Obama administration supported the Tribes’ position, and USACE committed to a full environmental review. Days after his inauguration in January 2017, US President Donald Trump signed an executive memorandum to grant the final permits and expedite the construction process.

Just after DAPL became commercially operational in June 2017, US District Judge James Boasberg concluded that USACE had not complied with environmental review laws before issuing the final permits. The court ordered a new environmental review. The judge requested an additional briefing to assess if the pipeline should be shut off during this review.

In the context of this request, TGG provided expert testimony in support of a legal brief by Earthjustice in August 2017. The Declaration of Ian Goodman (with in-depth participation of Brigid Rowan) concluded that a shutdown, pending the completion of a new environmental review, (a) would not have the severe disruptive consequences claimed by the pipeline company; (b) would not unduly harm crude producers, refiners, consumers and the US economy; (c) would (at most) result in a relatively limited increase in crude by rail; and (d) would not have significant adverse impacts in regard to risk of accidents/spills. In terms of the risk of worst-case accidents and spills, TGG concluded that there is no clear reason to assume that DAPL is less risky than crude by rail. In fact, for the Plaintiffs’ reservations, DAPL would have a much higher proximity and much greater risk than crude by rail.

In October 2017, Judge Boasberg ruled against a shutdown. Since that time, the legal battle over the federal permits has continued. In March 2020, Judge Boasberg sided with the tribes and ordered the USACE to undertake a full environmental impact statement – and in July, the judge ruled that DAPL be shut down pending the full EIS. Since that time, the DC Court of Appeals issued a mixed decision that allows the pipeline to operate. On May 21, 2021, Judge Boasberg ruled that DAPL can keep operating while the new environmental review is conducted. The Biden administration opted not use its enforcement authority to halt against the project for now. The new EIS is expected in March 2022. This review is expected to be more rigorous under a Biden presidency, possibly resulting in a permanent shutdown of the pipeline. However, DAPL has been the subject of years of intense conflict and litigation, the outcome of which remains uncertain.

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Sitting Bull Over Protectors, 2016, CC BY-NC 2.0; Credit: Joe Brusky / Overpass Light Brigade