Supreme Court Lets Stand a Dakota Access Pipeline Appeal

The future of the 1,200-mile pipeline is uncertain.

February 24, 2022

Dakota Pipeline Resource

ALEXANDRIA, Va.—The U.S. Supreme Court declined to hear an appeal in the case brought by Native American tribes and environmental groups against the Dakota Access Pipeline, reports Bloomberg.

Without comment, the justices would not question a D.C. court of appeals ruling in the case Dakota Access v. Standing Rock Sioux Tribe. The ruling states that the Army Corps of Engineers should have prepared an environmental impact statement (EIS) before granting the pipeline the right to cross under Lake Oahe in North Dakota.

Because of the refusal, there is uncertainty surrounding the 1,200-mile pipeline, which carries 200 million barrels of crude a year from North Dakota’s Bakken oil fields to Illinois’ Patoka oil terminal.

The Army Corps is working on an environmental impact statement to satisfy the D.C. court of appeals decision, and so far, the Biden Administration has not made any moves to shut down the pipeline while that review continues, but it does introduce some jeopardy. The Corps approved the pipeline to run under Lake Oahe during the first weeks of former President Donald Trump’s administration. The line has been operating since March 2017.

The Biden Administration and five Sioux tribes urged the high court to reject the appeal. U.S. Solicitor General Elizabeth Prelogar told the justices the case had “limited prospective significance,” in part because a key set of environmental regulations was revised in 2020.

In November, NACS filed a brief in the Supreme Court in the case. NACS asked that the high court agree to review the decision of the D.C. Circuit Court of Appeals regarding whether the Dakota Access Pipeline must shut down and prepare a full environmental impact statement.

“The Dakota Access Pipeline is key to getting oil from the Bakken reserve to the market,” said Doug Kantor, NACS general counsel. “Particularly given the oil prices we face today we need the Supreme Court to ensure we don’t lose access to this source of supply.”

In 2020, the Standing Rock Sioux and environmental groups sued to block the operation of DAPL arguing that a full EIS should have been conducted before DAPL began operations. The Army Corps of Engineers had concluded that an environmental assessment (a less-stringent review) was sufficient.

The D.C. District Court initially ordered that the DAPL would need to be shut down and conduct an EIS. NACS filed a brief later that year successfully supporting DAPL’s effort to delay that decision pending litigation.

Following litigation of the issues, however, the D.C. Circuit ruled that a full EIS must be conducted because there was “controversy” surrounding the project.

NACS argued that the decision by the D.C. Circuit contradicts clear rules established by other circuit courts and creates uncertainty for virtually any future pipeline project. Unless the Supreme Court takes the case, the D.C. Circuit decision will add years and cost to virtually any future pipeline project.

And, in this case, allowing the D.C. Circuit’s decision to stand likely would result in a shutdown of DAPL for a year or more. Kantor added, “The D.C. Circuit’s decision creates conflicting legal standards across the nation and makes it difficult or impossible for projects to meet this newly contrived standard. It is the last thing we need right now.”