The US District Court of Appeals has delivered another blow to the controversial Dakota Access Pipeline (DAPL), requiring an additional environmental review and leaving a cloud of legal uncertainty over the project.

As a result of a complaint by the Sioux Tribe of North and South Dakota, the court has agreed with the lower district court that the Army Corps of Engineers conducting the review did not adhere to the National Environmental Policy Act (NEPA) when it allowed the DAPL to cross a federal reservoir in North Dakota, and that a more extensive review was necessary.

The 1,800-kilometre underground oil pipeline runs from the shale oil fields of the Bakken formation in North Dakota, continues through South Dakota and Iowa to a terminal in Illinois. The new ruling does not require the pipeline to stop or be emptied of oil.

The court reiterated that the lower court overstepped in ordering the pipeline to shut down.

However, the federal court’s decision to invalidate the project’s crossover into the North Dakota reservoir has escalated pressure to shut the project down. The decision now sits in the hands of the Biden administration. 

Indigenous leaders and environmentalists are pushing President Biden’s administration to exercise its separate authority to pause operations.

The Standing Rock Sioux tribe and non-profit Earthjustice released a video message to President Biden voiced in the Lakota language.

Should President Biden approve the closure, shutdown could prove more complicated than the recent cancellation of the Keystone XL (KXL) pipeline as it has already been built and transports around 500,000 barrels of crude oil each day.

Native American leaders have been urging President Joe Biden to shut down America’s major fossil fuel pipelines, using the momentum of the new President’s decision to revoke the long-disputed KXL pipeline.

The 2,735-kilometre pipeline was planned to carry roughly 800,000 barrels of oil a day from Alberta, Canada to the Texas Gulf Coast, passing through Montana, South Dakota, Nebraska, Kansas and Oklahoma.

Many Indigenous leaders said the pipeline threatened their communities; the Missouri River runs west to east along the Fort Peck Reservation’s southern border. As the pipeline does not cross the Reservation, the tribes will also not receive revenue from it.

There was also concern that an oil spill could contaminate their existing irrigation and drinking water supply.

Angeline Cheek, Fort Peck Tribal member and Indigenous Justice Organiser for the American Civil Liberties Union (ACLU) of Montana, told USA Today that pipelines are seen as an act of genocide against Native American people.

“Pipelines cross our reservations, destroying our environment and our people. We can’t live without water, and you cannot replace a life,” she said.

“This is about honouring our Ancestors’ Treaties and protecting our natural resources. As Indigenous people, we are the original caretakers of the environment, and we need to protect it.”

The executive order cancelling KXL was issued on Wednesday as part of President Biden’s promised environmental justice and climate action policies, which included halting construction of the southern border wall.

“Leaving the KXL pipeline permit in place would not be consistent with my administration’s economic and climate imperatives,” read Biden’s executive order.

President Biden’s climate plan is looking to ensure the US reaches net-zero emissions by 2050 and achieve a 100 per cent clean energy economy, which experts say is not possible if investment in oil and gas continues.

By Darby Ingram