DAPL: Is The EIS Even Required Any More? Has The EIS Become Moot? -- May 25, 2021

This story is tracked elsewhere.

From SeekingAlpha this morning: bombshell if I'm reading this correctly -- the lack of action by the US Army Corps of Engineers suggests to one contributor to SeekingAlpha that the EPA reassessment may not be needed, assuming I am reading this correctly.  

Read the fourth bullet closely:

• DAPL can continue to ship oil.
• The court basically admitted that the law limited the options while raising an extremely high bar for an injunction.
• The Army Corps has refused to rule on the trespass of the pipeline.
• The lack of the Corps' action may result in an outgrant without the necessary NEPA requirements.
• Plaintiffs now have a very limited (if any) set of options.
• This idea was discussed in more depth with members of my private investing community, Oil & Gas Value Research. 

At the linked article, note the incredible forest in the Bakken. I had no idea. 

Back to the EIS issue, from the liked article:

The problem here is that the EIS is due to be completed by March, so there is not much time and the completion of the EIS may make such a process moot. This is something the plaintiff attorneys will have to examine among any other items that they feel they still have.

The Army Corps presented a rather unique position of its enforcement options:

The Corps additionally maintained - without citing any authority - that it was under no obligation "to take any particular action to cure an encroachment within a specified time period" or even "to ultimately cure the encroachment at all.

Source: District Court Decision Dated May 21, 2021.

This statement threw a monkey wrench into how the original Appeals Court Decision figured things would work. The Appeals Court originally assumed that the Army Corps would make a decision on the encroachment in a prompt manner.

[T]he Court of Appeals emphasized that it "would expect [the agency] to decide promptly. To do otherwise would be to issue a de facto outgrant without engaging in the NEPA analysis that the Corps concedes such an action requires.

Source: District Court Decision Dated May 21, 2021.

Now that the Army Corps has delayed the decision, the question before the district court was whether or not the now voided easement was enough to shut down the pipeline. The court's reasoning was that the vacated easement was not reason enough to shut down the pipeline.

That decision was properly the decision of the Army Corps of Engineers. This same Corps is now doing an EIS as the court ordered back in 2020.

Now, about the possibility of a leak "getting to the sacred waters":

Some insights as to likely conclusions were given by the court in its decision. First, there is the fact that the pipeline is a good 90 feet below the lakebed. Any leak would have to be substantial enough to (and move in the right direction) to cover that 90 feet. That would be quite a leak.

Secondly, there appears to be some natural layers between the pipeline and the lake that would inhibit liquids from making it through to the lake bed to begin a pollution-type event.

The biggest thing is that DAPL is a new pipeline with some of the latest safety measures and monitoring equipment available. Most new pipelines have relatively good track records (as does DAPL). Therefore, the court had to conclude that a damaging leak itself was not a realistic possibility because the court classified it as remote (at best).

Even the operating record of Energy Transfer submitted to the court could not overcome the inherent safety of a new pipeline. So any attempt by the plaintiffs to mention damage as a reason for an injunction failed.