Last week, the District of Columbia Court of Appeals affirmed vacatur of the easement issued to the Dakota Access Pipeline by the Army Corps of Engineers. As I noted last month in connection with the Biden Executive Order concerning Keystone XL, no one in the industry is rushing out to plan any new pipelines and no one in the financing business is rushing out to provide the cash to build any new pipelines.
Although the DAPL decision does not break any new ground, it certainly adds to the sense that siting new pipelines may be an uphill battle at this point. The Court's opinion affirms the primacy of NEPA in ensuring that environmental impacts are addressed before major infrastructure projects are constructed. Specifically, the Court stated that:
[I]f you can build first and consider environmental consequences later, NEPA's action-forcing purpose loses its bite.
If, when an agency declined to prepare an EIS before approving a project, courts considered only whether the agency was likely to ultimately justify the approval, it would subvert NEPA's purpose by giving substantial ammunition to agencies seeking to build first and conduct comprehensive reviews later. If an agency were reasonably confident that its EIS would ultimately counsel in favor of approval, there would be little reason to bear the economic consequences of additional delay.
The Court did reverse the District Court's order to shut down the DAPL, finding that the Court had not made the findings required to support an injunction. I fully expect that the District Court will make the required findings and issue an injunction requiring a shutdown. Indeed, the opinion notes that an injunction motion has been fully briefed before the District Court.
I could still see such an injunction being reversed on appeal, though I'm not sure I'd bet on it. I certainly wouldn't bet on the successful licensing and financing of any pipelines not yet in the pipeline, as it were.
The music is almost over and it may be about time to turn out the lights on fossil fuel pipelines.
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Originally Published by Foley Hoag, February 2021
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