D.C. Circuit Issues Mixed Decision on Dakota Access Shutdown Order

Oil to continue flowing pending additional court proceedings; but pipeline effectively operating illegally


Erin Shanley, Standing Rock Sioux Tribe, (701) 854-8500, ext. 8512


Rebecca Bowe, Earthjustice, (415) 217-2093

On the day that had been initially set as a deadline for shutting down the Dakota Access Pipeline (DAPL), a federal appeals court today issued an order that effectively allows oil to continue flowing for now. At the same time, the appeals court dissolved an administrative stay, vacating the permit for the pipeline to cross underneath Lake Oahe, which leaves the pipeline operating illegally. It falls to the U.S. Army Corps of Engineers to decide whether to exercise its authority to shut down the pipeline, and the issue will go back to the district court for more proceedings if they don’t.

“We’ve been in this legal battle for four years, and we aren’t giving up this fight,” said Standing Rock Sioux Tribe Chairman Mike Faith. “As the environmental review process gets underway in the months ahead, we look forward to showing why the Dakota Access Pipeline is too dangerous to operate.”

“Dakota Access is an affront to Tribal sovereignty and a threat to public health and clean water. Everyone would be safer if operations were halted,” said Earthjustice attorney Jan Hasselman. “The pipeline is now operating illegally: we are confident that it will be shut down eventually.”

Today’s decision found that the government and DAPL were not likely to prevail on the merits of their appeal that the U.S. Army Corps of Engineers must conduct a full environmental review on the pipeline. A final decision on whether to re-issue permits for the Dakota Access Pipeline is unlikely until after the 2020 presidential election, which sets up the possibility of permanent closure. In March, a district judge invalidated a pipeline permit issued four years ago by the U.S. Army Corps of Engineers because it violated the National Environmental Policy Act, by failing to look carefully at the dangers posed to the Tribe.

Controlled by a Dallas billionaire, Energy Transfer moved quickly to overturn a federal district judge’s July 6 decision ordering the line shuttered and emptied of oil while federal regulators conduct an in-depth analysis determining whether it is safe to operate. Backed by Trump, who expedited completion of the pipeline with a 2017 executive order, DAPL crosses beneath the Missouri River at Lake Oahe just half a mile from the Standing Rock Sioux Tribe reservation in North Dakota, on unceded ancestral lands. An oil spill would poison the Tribe’s drinking water and the drinking water supply for some 17 million people downriver.

When Tribes and allies came together in 2016 for a spontaneous gathering to halt pipeline construction, DAPL attracted international attention and sparked an ongoing conversation about Indigenous rights and the federal government’s longstanding pattern of steamrolling ahead with dangerous fossil fuel projects while ignoring Tribal concerns.

Visit Earthjustice’s FAQ for ongoing updates on the lawsuit against the Dakota Access Pipeline.

Read the legal document.

D.C. Circuit Court of Appeals Decision on DAPL (PDF)
D.C. Circuit Court of Appeals Decision on DAPL (Text)

Gathering in opposition to Dakota Access Pipeline
Tribes and allies gathered in North Dakota in 2016 to oppose the Dakota Access Pipeline. (Alyssa Schukar / New York Times via Redux)

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