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Judge denies Dakota Access bid to block Army Corps environmental review

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Judge denies Dakota Access bid to block Army Corps environmental review

A federal judge denied a request by Energy Transfer Partners LP to stop the U.S. Army Corps of Engineers from launching an environmental review of the almost complete Dakota Access pipeline, which would further delay completion of the $3.7 billion conduit between oil production areas in North Dakota and a crude oil terminal in Illinois.

Energy Transfer's Dakota Access LLC filed a request Jan. 16 for a temporary restraining order against the corps' planned environmental impact statement on the project, which still needs an easement to complete a crossing of a widened section of the Missouri River called Lake Oahe. Judge James Boasberg of the U.S. District Court for the District of Columbia denied the request after a Jan. 18 hearing on the matter.

Dakota Access attorney David Debold of Gibson Dunn & Crutcher LLP, told Boasberg that the requirement for an environmental impact statement, or EIS, further complicates the complex case over the easement already before the judge. "If you don't take Jan. 18 [the date the opening of the EIS was published in the Federal Register] off the table," the further delay to the project will cause "serious financial harm to the company," Debold told the court.

U.S. Department of Justice attorney Matthew Marinelli, representing the corps, countered that Dakota Access should have seen that the EIS process was coming, as it was "telegraphed" in a Dec. 4 memorandum from the corps outlining the process going forward for Dakota Access.

Boasberg denied Dakota Access the order it sought restraining the corps from opening the EIS process, saying Dakota Access had not overcome the bar of irreparable harm required for a restraining order.

Boasberg also noted that if he rules against Dakota Access in the main case over the Lake Oahe easement, his decision allowing the EIS will have saved the pipeline time because the EIS process will have already begun. The EIS can be withdrawn if the government loses the easement case before Boasberg, Marinelli said.

"I have no idea whether I'm going to grant the easement or not," Boasberg said of his ruling, expected in February. "If I don't grant it, the EIS is underway."

In a note before the hearing, ClearView Energy Partners LLC said it was not certain that the corps' move to begin work on an environmental impact statement would cause any additional delays in the project, in large part because the incoming Donald Trump administration could reverse the corps' action.

The Standing Rock Sioux Tribe has been joined by environmentalists and other supporters, including a string of celebrities, in on-the-ground protests against the pipeline project for much of the past year, turning the easement to cross Lake Oahe into a cultural and political flashpoint. The pipeline opponents say the project threatens sacred sites and the local water supply.

On Jan. 6, the corps asked the federal district court to reject Dakota Access' request that the court force the agency to approve an easement across Lake Oahe in North Dakota for the crude oil pipeline project. On Dec. 4, 2016, the corps refused to grant the easement, saying it needed to conduct an environmental review and evaluate alternate routes for the river crossing. Energy Transfer and the affiliated Sunoco Logistics Partners LP said the decision was political. A court ruling on the Dakota Access request is expected as early as February.

Other parties are involved in the case. On Jan. 6, the Cheyenne River Sioux Tribe asked the court to dismiss the Dakota Access request. The tribe said the request was entered too early because it attempts to challenge an agency action that is not yet final. (U.S. District Court for the District of Columbia docket 1:16-cv-1534-JEB)