Dakota Access Must Shut Down. Is It a Harbinger?

I don’t like to speculate, so I won’t say that July 6, 2020, was the beginning of the end of fossil fuel infrastructure in the United States.  I will say, with apologies to Judith Viorst, that it was a Terrible, Horrible, No Good, Very Bad Day. 

First came the news that even a recent Supreme Court win wasn’t enough to save the Atlantic Coast pipeline.  Delays, cost overruns, and continued litigation risk related to other outstanding challenges, caused Dominion Energy and Duke Energy to pull the plug, as it were, on the Atlantic Coast pipeline.  In fact, the discouragement at Dominion was sufficiently profound that Dominion is selling all of its gas pipeline assets to Berkshire Hathaway.

Then came the sledgehammer that may break the camel’s back – the decision by District Judge James Boasberg to vacate the Army Corps easement that allowed the Dakota Access pipeline to be built under Lake Oahe.  The owners must shut the pipeline down and empty it of oil within 30 days – and keep it that way until a full Environmental Impact Statement is prepared.

Judge Boasberg had already rejected the Corps argument that no EIS was required.  Now, he has rejected arguments from the owner and several states as amici that the economic disruption from a shutdown would be vast, making vacatur inappropriate.  The problem with this argument, as Judge Boasberg noted, is that it encourages project proponents and supportive agencies to make each project an effective fait accompli, thus undermining the utility of NEPA from the get-go.

When it comes to NEPA, it is better to ask for permission than forgiveness: if you can build first and consider environmental consequences later, NEPA’s action-forcing purpose loses its bite.

I can imagine a successful appeal of the vacatur order.  I can imagine other big pipeline projects moving forward, particularly if Trump is reelected.  I can also imagine historians in years to come identifying July 6, 2020, as the beginning of the end.