Dakota Access Pipeline developer lawsuit stalls, environmental review continues

U.S. Supreme Court declines to hear legal challenge that could have prevented ongoing federal NEPA review.

An Indigenous environmental activist attaches herself to a large tripod using a bike lock, blocking traffic near Black Lives Matter Plaza on the north side of the White House as part of a protest against oil pipelines on April 1, 2021 in Washington, DC. Organized by the Indigenous Environmental Network, the demonstrators called on President Joe Biden to 'Build Back Fossil Free' by stopping the Dakota Access and Line 3 pipelines. (Photo by Chip Somodevilla/Getty Images)

Editor’s update, 7 p.m. ET: Jan Hasselman, an Earthjustice lawyer for the Standing Rock Sioux Tribe since 2016, tells Indigenous Wire that he isn’t surprised that the Supreme Court decided not to take up this case. “Just because a case is high profile doesn’t mean it is a good candidate for Supreme Court review,” he said. “This just wasn’t. No circuit split, no constitutional issue, etc.”

As for why the Biden administration doesn’t shut down the Dakota Access Pipeline right now since it is operating without a permit, Hasselman said that’s a “great question,” adding that “many people are disappointed with this [administration] on fossil fuel production and transport.”

Hasselman said it is “hard to align [the Biden administration’s] actions with their words…so we keep pushing.”  

Original article follows:

The Dakota Access Pipeline being constructed through farmland near Sioux Falls, SD. The Dakota Access Pipeline Project is an approximate 1,172-mile, 30-inch diameter pipeline that connects the rapidly expanding Bakken and Three Forks production areas in North Dakota to Patoka, Illinois. (Getty images)

WASHINGTON — The Standing Rock Sioux Tribe is tentatively celebrating a decision by the U.S. Supreme Court today not to hear a challenge to an ongoing federal environmental review process of the controversial Dakota Access Pipeline (DAPL).

“The petition for a writ of certiorari is denied,” the high court ordered this morning. “Justice Alito and Justice Kavanaugh took no part in the consideration or decision of this petition.”

Energy Transfer LP, the developer of the pipeline, had argued that the Supreme Court should hear its case challenging a 2020 decision by Judge James Boasberg of the U.S. District Court for the District of Columbia.

Boasberg had ordered that DAPL should be shuttered and drained until the federal government conducted a full National Environmental Policy Act (NEPA) review, including spill risks.

Boasberg was sensitive to the tribe’s concerns that the pipeline crossed beneath Lake Oahe in the Dakotas near the Standing Rock Sioux reservation.

On appeal, the U.S. Court of Appeals agreed that a more thorough review of spill risks was required under NEPA, but it did not force the pipeline to close.

Energy Transfer LP chose to operate the pipeline starting in 2017 sans permit under the Trump administration.

Operators have said the pipeline is “vulnerable to a shutdown” under the standing court rulings, which is why they wanted the Supreme Court to weigh in.

The company would not offer comment on the high court’s denial, citing “current or pending legal matters.”

Native advocates, including those from Standing Rock, say the Biden administration should now close the pipeline until a full review, including a spill-risk analysis, is complete. Such a review is expected to take at least until September.

“The litigation concerning the pipeline is over, but the fight continues,” Jan Hasselman, a lawyer for the tribe with Earthjustice, said in a statement. “We call on the administration to close the pipeline until a full safety and environmental review is complete.”

“[T]his lawsuit is over — the fight over the pipeline is not,” Hasselman added on Twitter. “It is operating without a permit, with the tacit permission of the government. There is an environmental review underway, and the result of that will inform a new permit decision later this year.”