Judge James Boasberg of the District of Columbia District Court issued a short opinion last week in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers. In it, he instructed Energy Transfer Partners, the pipeline builder, to temporarily cease using its 1,172-mile long Dakota Access Pipeline (DAPL), which ships up to 570,000 barrels a day of crude oil from the Bakken and Three Forks fields of North Dakota to terminals and refineries in Patoka, Illinois.

The dispute was about a short-stretch of pipeline (1,094 feet) that ran approximately 100-feet below a lake, about one-half mile from tribal lands. From the moment that DAPL was announced, the Standing Rock Sioux Tribe mounted a full-scale attack on the venture. The pipeline was seen as yet another affront to its tribal way of life—the latest in a long string of historical injustices undertaken by, or with the blessing of, the United States government.  At a more concrete level, the Tribe argued that the pipeline would run through its sacred lands and damage its water supply.

In fact, the pipeline does not cross into the Tribe’s land. Nonetheless, the Tribe sought to exercise its statutory rights to be consulted about the pipeline under both the National Historic Protection Act (NHPA) and the National Environmental Policy Act (NEPA).  In 2015, the Tribe sued the Corps to reroute DAPL away from its lands, and raised multiple objections about the design and site of the pipeline.  The objections to the pipeline continued even after it was put into operation in June 2017 without serious incident.

All cases that involve claims of future and uncertain harms involve making judgments about the probability of both good and bad outcomes from the given operation. In earlier work with the GAIN Coalition (Grow Our Infrastructure Now), I argued against any effort to shut the pipeline down.  In this instance, I am writing on my own account, but the basic situation has not changed. The ultimate calculation is not close: the dislocations to the many businesses that depend on the pipeline operation for their success and the loss of tax revenues for multiple states completely outweigh the miniscule risk of harm to tribal interests from any conceivable oil spill, given the pipeline’s state-of-the-art construction, and the constant monitoring of its operation.

That, however, is not how Judge Boasberg saw the issue. His opinion from March 2020 held that the Army Corps had failed in its statutory obligation under NEPA to provide a detailed environmental impact statement (EIS) to address three major flaws in the record. The first was whether “the project’s efforts were likely to be highly controversial.” The second concerned “the impact of an oil spill on the Tribe’s fishing and hunting rights.” The third required an “environmental-justice analysis” of whether the Tribe “would be disproportionately harmed by a spill.” Judge Boasberg’s latest opinion concluded that the deficiencies in the record required a shutdown of all pipeline operations for 13 months until the needed EIS was supplied.

In reaching his conclusion, Judge Boasberg held that the Corps, as the responsible government agency, had incorrectly made a “finding of no significant impact” (or FONSI) after it ran its initial—and shorter—Environmental Assessment (EA) of the project. Judge Boasberg reasoned that the Corps’ EA did not adequately address the question of controversy over DAPL, and thus held that the EIS was required on that ground alone, notwithstanding the disruption it would cause in the operation of crude oil distribution in the upper Midwest. In his view, the market disruptions were likely to be slight, as the dip in demand for crude oil during COVID-19 would allow alternative forms of transmission (rail and truck) to pick up any slack in distribution. At no point in his opinion did he consider the potential danger to the pipeline's integrity if it were decommissioned as ordered.

In deciding to shut down DAPL, he started with the presumption that any failure to perform the necessary EIS required vacating all permits issued, unless they fell under an exception to the basic rule established by the 1993 D.C. Circuit decision of Allied-Signal v U.S. Nuclear Regulatory Commission. That influential case established a balancing test between the seriousness of the violation in question (including the risk that the agency has not behaved correctly) and the disruption wrought by closing down the pipeline.

I believe that Boasberg’s decision is woefully wrong. My judgment depends on the basic soundness of NEPA and on the application of the current law to the facts of this case.

NEPA is frequently hailed as a mere procedural statute whose major task is to see that all the relevant information is gathered before any decision is made: “Look before you leap” is the motto. As I argued in a briefing paper that I prepared for ConservAmerica, this so-called procedural rule is a death knell for projects because the injunction against beginning construction introduces such long delays that many commercial entities, fearing continued financial losses, leave the fields before any productive gains are ever realized. The 600-mile Atlantic Coast Pipeline, for example, was recently abandoned after six futile years of seeking to gain permit approval, even after its fully-deserved recent Supreme Court victory in United States Forest Service v. Cowpasture River Preservation Association.

Yet, before the anti-pipeline partisans cheer that outcome, they should recognize that the inability to construct newer and safer pipelines, or other major facilities, leaves older and more dangerous facilities in service for longer periods of time, creating the double whammy of higher consumer costs and greater environmental risk. The organized objections to pipeline construction are fierce, and they are typically focused on the particular design features of a given project.

These attacks are meant to choke off the supply of fossil fuels on the naïve view that it is possible to run a major economy on renewable energy sources alone, chiefly wind and solar. But both wind and solar are less reliable and have serious disadvantages in construction and removal when compared to their fossil fuel alternatives.  As Matt Ridley has written: “The wind farms kill thousands  of rare birds of prey each year, the biogas plants cause run-off and soil erosion, while the solar farms industrialise and denature the land.”

Oblivious to the shortfalls of wind and solar, hostile political forces did everything they could to obstruct the construction of the DAPL pipeline, as Judge Boasberg meticulously documented in his 2016 opinion, which rejected multiple challenges to the pipeline from the Standing Rock Sioux Tribe at every stage of the permitting process.

Ostensibly, the purpose of the EIS is to gather more information about key issues, but in his opinion of last week, Judge Boasberg did not offer a single suggestion of relevant information that might be unearthed to justify the added time and expense of this arduous process. The arguments for and against the construction of the pipeline were already well documented in the detailed studies of the Army Corps, all of which survived judicial scrutiny. In order to overcome this objection, Judge Boasberg tried to offer some concrete scientific reasons why the EIS might be justified. Accordingly, he referred to evidence offered by the plaintiff’s pipeline experts who claimed that the pipeline monitoring system is not sufficient to detect leaks at less than one percent of flow rate, so that a supposedly constant flow of 6,000 barrels of oil per day could leak from the facility without setting off any alarms.

To set that number in perspective, note that the average annual pipeline spillage since 1986 has been about 76,000 barrels per year for the whole U.S. pipeline system, the safety of which has increased steadily over time. Sadly, Judge Boasberg credits the plaintiff’s worst-case estimate even though DAPL is an active pipeline that has been in constant operation for three years—and during that time, the only reported leaks have occurred at pumping stations, and not along the long stretches of pipeline buried entirely underground. Surely, the Tribe’s nightmare estimate has been falsified by the safe operation of the last three years.

In addition, DAPL follows the same path as the Northern Border Pipeline, which has been in operation since 1982. What try to reroute the pipeline, which would create additional environmental damages, impose hundreds of millions of dollars of stranded costs, and provoke yet another round of NEPA challenges?

It seems painfully clear that Judge Boasberg could have taken other steps to speed the EIS along without shutting the pipeline down, such as fining the Corps or its owner, Energy Transfer Partners, for each day that the EIS was overdue. It is equally clear that he understates the grave consequences of his decision—it strains credulity to believe that the shutdown will last for only thirteen months. The Tribe could raise massive challenges to the sufficiency of any EIS, which could extend the proceedings even further.

Yet during that time, the demand for crude oil could increase, or some serious spillage could take place with shipments by rail and truck. And should the Democrats capture the White House, we can predict that a newly-elected President Biden may happily decide to shut down the pipeline permanently, which will then create systematic energy and job losses. As I have long argued, it is a sad irony that NEPA, which was passed in order to improve environmental quality, has instead produced just the opposite outcome, leading to less efficient and more dangerous forms of energy transportation in place of the most cutting-edge technology available.

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