DC Circuit Appeals Court reverses shutdown order for Dakota Access Pipeline
Wednesday, August 5, 2020

On the day the Dakota Access pipeline was to have been shut down and emptied, a three-judge panel for the D.C. Circuit Court of Appeals ruled that a lower court did not make the findings necessary for that kind of injunctive relief. 

The higher court's decision puts the ball in the U.S. Army Corps of Engineer's court as to whether the pipeline can continue to operate.

The panel cited the four-factor test required for an injunction, which includes a requirement that the remedy does not harm public interest, in issuing its decision on the afternoon of Wednesday, Aug. 5.

The panel did not, however, agree to reverse the lower court's decision requiring more environmental study of the pipeline.

Judge James Boasberg ruled in March that the "highly controversial" nature of the project meant the U.S. Army Corps of Engineers should have prepared the lengthier Environmental Impact Statement instead of the shorter Environmental Assessment when it issued an easement for the pipeline's Lake Oahe crossing.

"At this juncture, appellants have failed to make a strong showing of likely success on their claims that the district court erred in directing the Corps to prepare an environmental impact statement," the judges wrote. 

Chase Iron Eyes, lead counsel for the Lakota People's Law Project, said the outcome of the decision isn't as negative as it may seem for the tribes and environmentalists.

"Even if the oil continues flowing for the moment, the ruling keeps us on the trajectory toward shutting down the pipeline," he said. "DAPL's permit remains vacated, and Juge Boasberg has a roadmap for strengthening his injunction per Supreme Court precedent. No pipeline should be allowed to operate without proper environmental review. We believe the law is on our side, and that Standing Rock will prevail, even if that outcome isn't finalized until the next administration is seated." 

Reaction from industry groups was mixed. There was relief that the shutdown was reversed, but also acknowledgement that a legal thicket still remains ahead for the pipeline.

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