Boasberg Delivers Blow to DAPL Pipeline, Energy Infrastructure At Large

Earlier today U.S. District Court Judge James Boasberg of Washington, D.C. ruled against the Dakota Access pipeline and U.S. Army Corps. of Engineers, ordering the pipeline to shut down operations by August 5th until another environmental impact statement (EIS) is completed. Earliest estimates suggest that said EIS could take up to 13 months.

Specifically, Judge Boasberg determined that the U.S. Army Corps. of Engineers improperly granted Dakota Access developer Energy Transfer a key environmental permit. The project has operated safely since coming online three years ago.

As many know, Dakota Access is the lone, direct pipeline from North Dakota’s Bakken oil formation to a distribution hub. Dakota Access’ primary offtake is the Patoka, Illinois Energy Terminal. Further, Dakota Access has become something of a bellwether in the energy infrastructure space for modern pipeline technology and the litigious and permitting complications that frequently disrupt projects. Today’s ruling, and the recent Atlantic Coast pipeline abandonment, will undoubtedly unsettle developers nationwide about the role of judicial figures, regulators, and activism in the success of a project.

Judge Boasberg’s decision raises many questions for observers of the industry and on its face seems to be a deferment to environmentalists and activists that have harassed Energy Transfer since the project was first proposed.

On its face it seems ridiculous to shut down the pipeline, especially given the consequences for many employees, businesses, supply chains, and contracts involved in the operation of a pipeline of Dakota Access’ size. Boasberg touched on this: “The Court does not reach its decision with blithe disregard for the lives it will affect. It readily acknowledges that, even with the currently low demand for oil, shutting down the pipeline will cause significant disruption to DAPL, the North Dakota oil industry, and potentially other states,” and he is correct, many will be worse off because of this shutdown and its cloudy timeline forecast.

Further, many should question the fairness of the ruling. At its heart the case was brought forward by activists looking for a chink in the pipeline’s armor and found it in what could be construed as a misstep in issuing permits for the project. Boasberg’s decision grants the plaintiffs something that can only be a slight step down from their ultimate victory (a permanent closure) by granting a temporary closure conditioned on the findings of the EIs.

Why does there seem not to be any consideration for allowing its operation to continue while the Army Corps conducts its second review?

The next steps in the DAPL battle seem to have been laid out. As Energy Transfer has stated, the company intends to explore all legal options to stay or appeal the ruling. There is certain possibility this makes its way to the Supreme Court, which has as recently as this year helped sift through permitting and jurisdictional issues regarding energy infrastructure. GAIN Gavel is hopeful for a successful appeals campaign for Energy Transfer. DAPL is an important component of the nation’s energy successes and if completely shuttered the project will come to set a dangerous blueprint for activism targeting other projects nationwide.