The ongoing saga of the Dakota Access Pipeline

July was a tough month for the pipeline industry, as Dominion and Duke Energy announced cancellation of the Atlantic Coast Pipeline, a district court in Montana appeared to invalidate Nationwide Permit 12 -- calling into question numerous pipeline projects approved under the permit (including Keystone XL) -- and a district court in D.C. ordered the Dakota Access Pipeline to be emptied and shutdown while further environmental review was conducted.

Energy Transfer LP, the entity behind the Dakota Access Pipeline, narrowly avoided the shutdown this month, when the U.S. Court of Appeals for the District of Columbia vacated the district court's decision shutting down the pipeline.

The Dakota Access Pipeline is a nearly 1,200-mile long oil pipeline designed to move crude oil from North Dakota to Illinois. Over 500,000 barrels are moved per day. The pipeline has been plagued with issues since its inception, facing opposition from environmental groups and local tribes, as well as flip flopping support from the Obama and Trump administrations. The controversial pipeline led to national protests in 2016.

In 2017, the district court found that the U.S. Army Corps of Engineers had violated National Environmental Protection Act by granting an easement, which allowed Energy Transfer LP to construct and operate a portion of the pipeline beneath Lake Oahe. Lake Oahe is a drinking water source for the Standing Rock Tribe in South Dakota, who are the plaintiffs in the ongoing litigation. Standing Rock Sioux Tribe et al. v. U.S. Army Corps of Engineers, 255 F. Supp. 3d 101, 112 (D.D.C. 2017). The court found that the Corps' decision not to prepare an environmental impact statement was arbitrary and capricious because the Corps did not adequately consider the impacts of a potential oil spill on fishing and hunting rights, as well as environmental justice issues and the degree of controversy surrounding the pipeline. The Corps was ordered to reconsider those sections of its environmental analysis on remand.

The court then ordered separate briefing on whether the pipeline would have to be shuttered while the Corps conducted their further environmental review, a process estimated to last until mid-2021. On July 6, the district court found in favor of the Standing Rock Tribe, ordering the pipeline shutdown and emptied by Aug. 5, and to remain shuttered for the duration of the remand process.

On July 14, the D.C. Circuit granted an administrative stay to halt the shutdown pending the court's consideration of Energy Transfer LP's emergency motion for stay.

On Aug. 5, a three-judge panel of the D.C. Circuit reversed the district court, holding that the district judge had not made "the findings necessary for injunctive relief." Standing Rock Sioux Trivbe et al. v. U.S. Army Corps of Engineers, 20-5197. The D.C. Circuit placed the decision as to whether operation of the pipeline would continue in the hands of the Corps, stating, "[w]e expect appellants to clarify their positions before the district court as to whether the Corps intends to allow the continued operation of the pipeline notwithstanding vacatur of the easement."

The district court held a telephonic hearing on Aug. 10, ordering the Corps to provide a status update as to the options it is considering in light of the vacatur on Aug. 31, and also ordering the parties to "discuss in good faith mitigation measures that could lessen the likelihood and severity of an oil leak in or around Lake Oahe."

While Energy Transfer LP came out on top in this phase of the litigation, the battle isn't over. As the Army Corps returns to its environmental review, the looming election could also impact this never-ending litigation, as a Biden presidency may slow the environmental review process or further impede operation of the controversial pipeline. 