Response to Energy Transfer Partner's declaration that they will not shut down the Dakota Access Pipeline

Pictured: The Dakota Access Pipeline (DAPL) being installed between farms, as seen from 50th Avenue in New Salem, North Dakota.(Photo: Tony Webster, CC BY-SA 2.0 [creativecommons.org/ licenses/by-sa/2.0])

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ETP's declaration unacceptable says Lakota People's Law Project

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Lakota People's Law Project

Energy Transfer Partners' (ETP’s) declaration yesterday that they will not abide by D.C. District Court Judge James Boasberg’s decision to shut down the flow of oil through the Dakota Access Pipeline near the Standing Rock Sioux Reservation is unacceptable. The National Environmental Policy Act requires that a full Environmental Impact Assessment be done before potentially hazardous infrastructure — such as an oil pipeline that passes beneath a fresh water source — be built. For the past three years, Energy Transfer Partners has operated a pipeline without such an Environmental Impact Assessment, a breach of the will of Congress that Judge Boasberg has now recognized via his decision on Monday, this week. Oil flow must be stopped by August 5, which requires that steps begin immediately to start emptying the pipeline. Any effort to resist that would constitute a violation of law.

Energy Transfer Partners has asserted that they believe Judge Boasberg exceeded his authority in ordering the emptying of Dakota Access. However, Judge Boasberg’s scope of authority is not something Energy Transfer Partners has the discretion to interpret.

Lakota People’s Law Project lead attorney, Chase Iron Eyes, and chief counsel, Daniel Sheehan, are available to the press for comment.

Following is a legal analysis by the Lakota People’s Law Project legal team:

Energy Transfer Partner’s demand for the empaneling of a Circuit Court of Appeals three-judge panel to review Federal Judge James Boasberg’s July 6th court order, and their request that the three-judge panel enter a stay of Judge Boasberg’s order pending the outcome of that appeal to this three-judge panel, is expected to be countered by the Standing Rock Sioux Tribe’s motion to forgo this three-judge panel and go directly to the full 11-Judge D.C. Circuit Court of Appeals, for what is known as an “en banc” review of Judge Boasberg’s July 8th order, since such an appeal to the Full Court is inevitable in any event, no matter what such a three-judge panel might rule.

Such an appeal on the part of the Energy Transfer Partners would put squarely at issue a 27-year-old 1993 D.C. Circuit Court three-judge panel ruling that allows D.C. trial-level judges to “balance the equities” of vacating a federal license erroneously issued by the U.S. Army Corps of Engineers for a given proposed construction project that threatens significant environmental damage. This precedent was directly relied upon by Judge Boasberg in his ruling, and in this case he “struck the balance” in a way adverse to the oil pipeline’s interests. As it turns out, the full D.C. Circuit Court of Appeals issued a ruling, just on June 30th, that makes it clear that the full D.C. Circuit Court of Appeals will not countenance any longer legal procedures that allow oil pipelines to continue to be built and/or to operate during the pendency of a legitimate legal challenge to their licensing by the federal government. 

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