The U.S. Army may decide by week’s end whether to approve construction of the Dakota Access Pipeline across North Dakota’s Lake Oahe and lands claimed sacred by Sioux Indian tribes.
Justice Department lawyer Matthew Marinelli outlined the planned timeline for the Army’s decision to a federal judge in Washington hearing a three-way dispute over the planned path of the Energy Transfer Partners LP-led project. Marinelli didn’t say which way the decision might go.
President Donald Trump last month issued a memorandum urging the Army Corps of Engineers to expedite its review of the conduit’s path after the federal agency put the brakes on ETP’s nearly complete $3.8 billion, 1,172-mile conduit for shunting crude from northwestern North Dakota to a Patoka, Illinois, distribution center last year amid protests raised by environmental groups and the Sioux.
While U.S. District Judge James Boasberg, and then a federal appeals court, declined to grant the tribes’ request for an order halting the project, the corps stopped construction anyway, stating it was reconsidering whether to issue easements required for tunneling under the lake bed.
Jan Hasselman, lead lawyer for the suing Sioux tribes, told the judge that because the Army Corps had already committed to an environmental impact review of the lake crossing, any easement granted before that analysis is complete "would be unlawful." The Corps turned the decision to the U.S. Army.
The tribes will likely file a second bid to halt the project, citing environmental impact concerns, if the pipeline project gets a U.S. government go-ahead, Hasselman said. He declined to comment further after the hearing.
Dakota Access, the consortium building the pipeline, initially intervened in the case to defend its interests against the tribes’ claims. It then sued the corps, contending it had met all the requirements for clearance and demanding the court find in its favor.
Timeline: History of the Dakota Access pipeline Brandon Howard Brandon Howard
The same day Trump ordered the review to be fast tracked, he also invited Calgary-based TransCanada Corp. to reapply for permission to build the Keystone XL pipeline, which was blocked by President Barack Obama in 2015.
Energy Transfer Partners spokeswoman Lisa Dillinger said last week that the pipeline would be in service in the second quarter of this year. The company had previously indicated that the conduit would be in use during the current quarter after delays forced it past its end-of-2016 target. ETP project partner Phillips 66 also said it expects the pipeline to be operational in the second quarter. Construction is 95 percent complete.
Boasberg called for Monday’s conference one week ago, after Marinelli told the judge he couldn’t provide a time frame for the government’s ultimate decision on whether to let the pipeline cross the lake bed.
The judge scheduled another conference for Feb. 13, when he’s to get a report on any progress made.
While two members of North Dakota’s congressional delegation said last week that the Army Corps would grant that permission, Army Corps’ lawyers said in a court filing they hadn’t yet made that decision.
"The Army will make any decisions once a full review and analysis is completed in accordance with the Presidential Memorandum," according to the filing.
Hasselman rejected the notion of a negotiated settlement during a Jan. 25 press conference with reporters.
"I don’t think there’s a lot of in between space for a compromise," he said then, citing long-standing tribal objections to the pipeline route across lands said to be sacred. "I don’t see that conditions are ripe for negotiation."
Bloomberg’s Meenal Vamburkar contributed
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