Dakota Access Lives to Pump Another Day

On Wednesday, the D.C. Circuit Court of Appeals stayed the injunction requiring the shutdown of the Dakota Access Pipeline.  It’s a victory for the operator, Energy Transfer LP, simply because it lives to fight another day.  From a legal point of view, however, I wouldn’t take that much comfort from the decision.

The basis for the stay was that the District Court did not make explicit findings on the need for an injunction.  I suspect that, if one were to catch Judge Boasberg in a candid moment, he might suggest to the Court of Appeals judges that they might have reasonably inferred from his opinion that he’d made the requisite findings.  On remand, I don’t think it will be that difficult for the judge to justify issuing an injunction.  It is true that there is language in the Circuit Court order indicating that the Corps should consider whether to allow the pipeline to operate, but there is nothing in the order that precludes the District Court from making the necessary findings and issuing an injunction.

On that score, it’s worth noting that the Circuit Court refused to stay the vacatur, noting that:

At this juncture, appellants have failed to make a strong showing of likely success on their claims that the district court erred in directing the Corps to prepare an environmental impact statement,… or that the district court abused its discretion in refusing to remand without vacatur.

I still think that there’s a significant possibility that the pipeline will have to shut down, though, if I were a betting man, I probably still wouldn’t bet either way on this one.

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