Construction on the Dakota Access Pipeline Continues, for Now

Here’s where the complicated legal case stands

WASHINGTON, D.C.—A district court judge denied a request to halt the drilling of the Dakota Access pipeline on Monday. Construction of the 1,100-mile project will continue for now.

The ruling adds another chapter to the convoluted legal history of the Dakota Access pipeline. The case is mired in procedural and statutory minutiae, but it commands huge public interest: In the United States, it is the highest-profile indigenous-rights cause in a generation. It has also become an early test of how the Trump administration will challenge the federal bureaucracy.

The number of entities who are involved in the case, and the number of legal questions still open in it, means that Dakota Access is back in the news on a near-weekly basis. Many of these stories look roughly the same. So here is what a concerned reader might want to know about Monday’s hearing:

1. Before the hearing, the Cheyenne River Sioux were seeking a temporary restraining order to stop work on the pipeline. The members of that tribe allege that the pipeline constitutes the arrival of a slippery, malicious, and long-prophesied “Black Snake,” and that the presence of the snake will doom the tribe and desecrate the sacred water in Lake Oahe. This would keep them from practicing their religion. (I wrote about the Cheyenne River Sioux’s religious-freedom claim last week.)

2. In a very narrow ruling premised only on these religious-freedom claims, Judge Jed Boasberg denied this request for a restraining order.

Boasberg drew a distinction implicit in the tribe’s brief: that while oil flowing through the pipeline would desecrate Lake Oahe, the pipeline itself would not. Since only the flow of oil would harm the tribe’s practice of the Lakota religion, he ruled that pipeline construction could go forward. This would give Energy Transfer Partners and the Army Corps time to file a counter-brief, and it would give him time to consider the deeper issues at hand.

3. The judge promised to rule on the merits of the religious-freedom question before oil starts coursing through the pipeline.

Energy Transfer Partners, the company developing the pipeline, reports that it has started to bore a hole for the pipeline beneath Lake Oahe, near Cannon Ball, North Dakota. Its lead attorney said that it could complete construction on the pipeline anywhere from three weeks to two months from now.

4. Meanwhile, the counsel for the Standing Rock Sioux Tribe announced that the tribe will move for summary judgement in their suit against Dakota Access.

This means that the tribe will seek a final answer from the district court to some of the biggest legal questions in their part of the case: Under federal law, are the Standing Rock Sioux owed an environmental-impact review of the pipeline? And since the U.S. Army Corps promised the tribe just such a review in December, was the Trump administration acting in an “arbitrary and capricious” way by canceling it on the new president’s fourth day in office?

Jan Hasselman, the lead attorney for the tribe, said that it will file that motion either Monday night or Tuesday morning. This will prompt a roughly month-long period of counter-briefs and new hearings.

5. Boasberg, the judge, was very clear that his ruling was not a decision about the merits of the pipeline itself.

“It’s not my place to decide whether the pipeline is a good idea or a bad idea as a matter of policy. That is left to the legislative and the executive branch,” he told the courtroom. “My job is only to rule on the legal questions before me.”

He did not rule out issuing an injunction to stop oil from flowing through the pipeline. At one point, he told the counsel for the Cheyenne River Sioux that “I certainly agree that—to protect your rights—speed is warranted.”

6. Boasberg set an aggressive timeline for the remaining briefs and hearings in the case. It seems plausible that the major legal questions in the case—about environmental review, religious freedom, and the Trump administration’s re-authorization of the pipeline—could be resolved by late March. Once the district court has ruled on the case, then either the tribe or Energy Transfer Partners can appeal to the D.C. Circuit Court of Appeals or the Supreme Court.