A U.S. district court has ordered the U.S. Army Corps of Engineers, Dakota Access Pipeline (DAPL) and tribes led by the Standing Rock Sioux to provide proposals for next steps in the ongoing litigation surrounding the oil system’s continued operation.
U.S. District Court Judge James Boasberg for the District of Columbia (DC) set a Tuesday (Sept. 8) deadline for submitting a formal position on the Army Corps plans to defer taking an enforcement action on DAPL’s “encroachment” at Lake Oahe. This essentially has kept oil flowing while a vacated easement permit is addressed.
The tribes and environmental groups are seeking a full shutdown of the pipeline while an environmental impact statement (EIS) is completed. DAPL, which carries oil from the Bakken Shale, has been in operation for three years. Attorneys for pipeline operator Energy Transfer have indicated that if it were required to halt operations, substantial financial losses would ensue not only for the Dallas midstreamer, but also oil and gas producers.
The Army Corps indicated in March it would move forward with the EIS and said discussions continue with the tribes that have challenged the permits. However, it asserted that it is under no time constraint. Instead, a status report indicates it is exploring an “outgrant” approach that contemplates potential alternative real estate arrangements and/or reissuing the easement authorization.
ClearView Energy Partners LLC said it’s now up to the tribes to file a motion that meets the four criteria for securing an injunction if they believe the pipeline should be shut down. Analysts said the motion could include evidence of irreparable injury and affirmation that remedies available at law, such as monetary damages, are inadequate to compensate for that injury. The tribes also must show that considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted, and public interest would not be disserved by a permanent injunction.
“If the tribes can make the case that these criteria are met, we would expect Judge Boasberg to grant an injunction,” ClearView analysts said. “However, demonstrating an irreparable injury can be challenging.”
The ClearView team referenced a case in which a Texas district court denied a motion for preliminary injunction on the construction of the Permian Highway Pipeline that was sought by the Sierra Club.
The Army Corps and DAPL have argued that the harm, if any, to the tribes has been “procedural, not substantive, and not irreparable,” ClearView analysts said. If the tribes do not seek an injunction, there may not be any additional litigation until the DC Circuit Appeals Court rules on the appeals in Standing Rock Sioux Tribe v. Army Corps of Engineers, No. 20-5197.
The Army Corps and DAPL filed their opening briefs late last month. The tribes’ response is due Sept. 16. Reply briefs could be filed by the end of the month. Oral arguments were to be scheduled “on the first appropriate date following the completion of briefing,” according to ClearView, but the DC Circuit’s oral argument schedule was showing cases scheduled through Oct. 28.
“Sometimes expedited cases, such as this one, are added,” analysts said. “A decision could be handed down by year-end depending on when oral argument is scheduled.” Full resolution may not occur until after the presidential election, they noted.
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