The protesters and cameras are gone and oil is flowing through the Dakota Access Pipeline in North Dakota, but the battle over the 1,200-mile pipeline continues in a federal courtroom in Washington, D.C.
In the next few months, a team of lawyers at Gibson, Dunn & Crutcher and Norton Rose Fulbright will try to convince a district judge to keep the pipeline open while the U.S. Army Corps of Engineers reassesses the permit it granted Dakota Access. The Standing Rock Sioux and other nearby tribes asked that the pipeline be shut down Wednesday during the Corps’ review.
Opening briefs on the issue from Dakota Access and the Corps were set for July 17, and the tribes’ response is due Aug. 7. A decision isn’t expected until as early as September.
Last week, in a 91-page opinion, Judge James Boasberg ruled the Corps’ permitting process was legally flawed. Boasberg ordered the Corps to conduct further review to determine if an EIS is needed, but declined to vacate the existing permit.
Leading the charge for Dakota Access, which joined forces with the Army Corps as an intervenor, are William Scherman, David Debold and Miguel Estrada of Gibson Dunn, and Kimberly Caine and Robert Comer of Norton Rose. Alan Glen of Nossaman is also on the team.
Opposing them is Jan Hasselman with the environmental legal group Earthjustice, who is arguing the case on behalf of the Standing Rock Sioux.
“Our view is that until there is a proper risk analysis that looks at the risk of oil spills, that considers the impacts to the tribe, they shouldn’t be operating that pipeline,” Hasselman said after the hearing. “We’ll be saying that as forcefully as we can to the court.”
Another concern for the tribes, raised multiple times during the hearing Wednesday, is whether the Corps will allow public comment and input from the tribes during the review. If they don’t, Hasselman said his clients will seek a court order requiring it.
“If the Army Corps goes into a room and closes the door and comes up with a new analysis, … we won’t have moved this ball forward. We won’t have solved any legal problem. We’ll just be back in front of the court again,” Hasselman said. “So our position is, this needs to be an open process.”
The tribes had argued that under the National Environmental Policy Act, the Corps should be required to conduct a full environmental impact statement, known as an EIS, before issuing a permit to Dakota Access. In December, the Obama administration rescinded the permit and ordered an EIS. But in February, the Trump administration rescinded that order and granted the permit.
For much of last year, the litigation ran parallel to massive protests by tribe members and activists at the pipeline construction site in North Dakota. An estimated 10,000 people camped out in the area to protest, the last of whom were cleared out in February. Tensions reached new heights after protests turned violent amid clashes with private security officers in September. North Dakota then-Gov. Jack Dalrymple even activated the state’s National Guard to assist local law enforcement with the protests.