States, Ag Battle for Dakota Access Pipeline – DTN

Keystone Pipeline Photo: Ray Bodden, Creative Commons

If the Dakota Access pipeline is closed down, agriculture economies in the Midwest could find it difficult and more expensive to ship grain, 14 states allege in a brief filed with a federal court ahead of Jan. 8, 2021, deadline for briefs related to a proposed injunction.

The U.S. Court of Appeals for the District of Columbia Circuit will be considering an injunction to halt operations because the pipeline doesn’t have an easement.

In an amicus brief filed with the court, the states of Indiana, Montana, Iowa, Kansas, Kentucky, Louisiana, Missouri, Nebraska, Ohio, South Carolina, South Dakota, Utah, West Virginia, and Wyoming side with agriculture interests, the pipeline company and the U.S. Army Corps of Engineers.

“All amici states — both states the pipeline passes through and others — stand to suffer potentially disastrous consequences in the event of a DAPL shutdown,” the states argued.

“In its previous vacatur order, this court largely dismissed these public-interest issues. Many amici states produce large amounts of grain currently shipped by rail — grain that will suffer displacement, owing to competition with higher-revenue oil for access rail transport, if the Dakota Access pipeline is shut down.”

If agriculture has to compete for railway and truck service, the brief said, agriculture will face intractable railroad congestion, rotting grain, higher food prices and, ultimately, a potential for food shortages.”

Also filing separate amicus briefs were the North Dakota Water Users Association, Western Dakota Energy Association, the state of North Dakota, North Dakota Farm Bureau, North Dakota Grain Dealers Association, North Dakota Grain Growers Association, South Dakota Grain Growers Association, South Dakota Farm Bureau Federation, South Dakota Grain and Feed Association and the South Dakota Soybean Association.

In the brief the states said crude oil shipments by rail and truck “pose greater safety hazards than shipments by pipeline.” The brief said shipment by rail or truck, “threatens greater environmental impact because such vehicles emit more greenhouse gases than pipelines.”

A district court last summer ordered the pipeline closed as a result of permitting issues with the construction of the line dating back to 2017. On July 14, 2020, the appeals court ruled the line could remain open pending an appeal.

“The widespread economic and safety disruptions that will arise from an injunction will far outweigh any actual harm caused by the short-term lack of an environmental impact statement,” the states said in the brief.

“The Dakota Access pipeline has already been constructed, the oil is flowing, and the American economy has come to rely on its benefits as an alternative to rail or truck transport.”

Agriculture groups have told the court a permanent shutdown of the pipeline would have devastating consequences for farmers.

The groups are concerned closing the pipeline could drastically increase the costs of transporting commodities. According to the groups, railroads transport 72% to 82% of North Dakota’s crop output.

In addition, the appeals court denied a motion to stay the district court’s order to vacate the Mineral Leasing Act easement, authorizing the DAPL to cross the Missouri River at Lake Oahe.

From April 2016 to February 2017, Native American and other groups protested the construction of the pipeline running from the Bakken oil fields in western North Dakota and crossing the Missouri and Mississippi rivers to southern Illinois.

Part of the pipeline runs near the Standing Rock Indian Reservation. Protests centered on concerns about the pipeline’s effect on water supplies used for irrigation, drinking water and threats to ancient burial grounds.

The appeals court ruled the Corps violated environmental law in 2017 when it allowed the pipeline owner, Energy Transfer, to build beneath South Dakota Lake Oahe.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

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