The Biden administration has decided not to order the controversial Dakota Access oil pipeline to shut down while it completes an environmental review, dealing a blow to green groups and Native American tribes who had sought to stop it from operating.
Lawyers representing multiple tribes challenging the Dakota Access pipeline, along with the Justice Department and pipeline operator Energy Transfer, held a status call with U.S. District Judge Brian Boasberg on Friday, in which government lawyers announced that it would not order a shutdown.
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Ben Shifman, an attorney for the Justice Department, told the court that the federal government retains the authority to shut down the pipeline at any time while the Army Corps of Engineers finishes its environmental review, which he said would happen by March 2022.
President Joe Biden pleased environmentalists but drew the ire of labor groups when he rejected the better-known Keystone XL pipeline. But a decision to force a shutdown of Dakota Access, even temporarily, would have been unprecedented because the pipeline is already operating, unlike Keystone XL.
A shutdown would have drawn the ire of Republicans, the oil and gas industry, and labor interests, who say it would harm oil producers in the Bakken shale basin, which primarily exists in North Dakota, after recently recovering from rock-bottom prices caused by the pandemic.
The Dakota Access pipeline has been carrying oil for more than three years from North Dakota to Illinois.
But environmental and tribal groups saw the decision as a test of Biden’s commitment to his campaign promises.
Jan Hasselman, an attorney for Standing Rock Sioux, one of the tribes challenging the federal approval of Dakota Access, said he was “deeply disappointed” by the government’s decision.
“It’s a shame to see the Biden administration throw away such a clear opportunity to stand up for Indigenous rights and environmental justice,” Collin Rees, a senior campaigner with Oil Change U.S., told the Washington Examiner. “Allowing DAPL’s continued operation maintains the Trump status quo.”
Boasberg, a judge for the District Court for the District of Columbia, had previously canceled a critical permit granted by the Trump administration allowing the pipeline to operate.
In July, he ordered the Dakota Access pipeline to shut down and empty its oil because the Trump administration’s environmental review was too deficient for the pipeline to continue operating.
The U.S. Court of Appeals for the District of Columbia Circuit later granted the pipeline’s developer, Energy Transfer, temporary relief by issuing an order allowing the oil to continue flowing while it undergoes the new environmental review.
At the same time, the D.C. Circuit affirmed the lower court’s ruling that the pipeline was operating illegally without a sufficient permit from the Corps for the pipeline to cross under Lake Oahe, a reservoir formed by a dam on the Missouri River.
The court let the Army Corps decide whether to shut down the pipeline while it conducted another environmental review. Under Trump, the Corps declined to do so.
Biden, however, could have decided to enforce a temporary shutdown of the pipeline.
Now, all eyes turn back to the district court, where tribes filed a new request for Boasberg to issue another shutdown order while the Biden administration finishes its review.
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Boasberg said Friday that he was “a little surprised” that the Biden administration punted on shutting down the pipeline, but he indicated that he would make his own decision soon after allowing 10 days for Energy Transfer to submit comments on the potential impact of a shutdown.
“The court needs to step in and grant an injunction to shut down Dakota Access immediately,” Rees said.
