The Dakota Access, LLC, and Energy Transfer Crude Oil Company, LLC (collectively, “the carriers”), own the Dakota Access Pipeline that runs from North Dakota to southern Illinois. The carriers submitted a plan to the Illinois Commerce Commission (“Commission”) to add additional pumping states in Illinois to accommodate the 2020 approval by North Dakota Regulators expanding the capacity of the pipeline from 570,000 to 1.1 million barrels per day. The Commission granted the carrier’s petition and Save Our Illinois Land (“SOIL”), one of the environmental groups opposed to the petition, filed for a rehearing which the Commission denied.
This is not the first time this pipeline has come under fire. Back in 2016 and 2017, during the construction of the Dakota Access Pipeline, there were prolonged protests due to the Pipeline crossing underneath the Mississippi River just north of the Standing Rock Reservation. The protests centered around the concern that the leakage from the pipeline would contaminate the Mississippi River, and harm the Standing Rock Tribe who rely on water from the river. The addition of more pumping stations in Illinois raises similar environmental concerns in regard to pipeline leakage.
SOIL v. Illinois Commerce Commission’s Current Status
SOIL appealed to the court, with seven arguments. The court found that two of those arguments had merit and necessitated a remand.
The first argument is whether the Commission in its assessment of the public need for the proposed pumping stations misapplied case law and failed to consider substantial evidence that prevented a finding of public need.
The Court of Appeals found that the Commission misinterpreted a prior decision as equating the “public” with the world. Under § 8-503 of the Public Utilities Act, the Commission must consider the public need for the proposed improvement, which in the broadest sense means the United States. However, the argument that the Commission failed to consider the evidence presented against the claim of public need is without merit. Just because the Commission did not give the same weight to the evidence as SOIL did, does not mean it failed to account for the evidence in the decision to grant the carrier’s petition.
The court stated that the Commission’s misinterpretation of the word “public” matters because “serving the needs of the world does not necessarily serve the needs of the ‘public,’ understood as the people of Illinois or the people of the United States.” Even if most of the crude oil is destined for foreign countries, the benefit of the United States may be more limited. When balancing the public’s need, the Commission and the parties must focus on the benefit to the United States as a whole and not the benefit of foreign nations from the increased throughput.
SOIL’s second argument on remand was a claim that the Commission arbitrarily and capriciously prohibited inquiry into the operator Sunoco Pipeline, L.P.’s record.
In light of the evidence that Sunoco (the subcontracted operator of the Energy Transfer Crude Oil Pipeline) was repeatedly fined for safety and environmental violations in its operation of pipelines in Pennsylvania, the Commission abused its discretion in holding that evidence irrelevant. Although pipeline safety is federally preempted, the pipeline operator’s duty to ensure safety is not. Therefore, Sunoco’s conduct as a pipeline operator in Pennsylvania is relevant to “the security of the public” and ought to be taken into consideration. Thus, rejecting, as irrelevant, evidence of Sunoco’s performance and regulatory violations in Pennsylvania is an abuse of discretion necessitating a remand.
The court issued its holding on January 12, 2022, and the Commission has six months from that date to issue a decision. 
What Would Approval of Sunoco Mean For Illinoisans?
If the Commission grants the carrier’s petition on remand, allowing for the construction of more pumping stations, the Dakota Access Pipeline would be one step closer to transporting 1.1 million barrels of crude oil per day. Alarmingly, the increase in outflow would also increase the leakage from the pipeline, which can affect the water, air, the soil of the surrounding land, and humans who come into direct or indirect contact with the crude oil. If the pipeline throughput is 1.1 million barrels of crude oil per day and there is a 0.9% daily leakage rate, that’s 9,900 barrels of crude oil leaking into the surrounding environment every single day.
As noted above, the Commission is preempted from denying the carrier petition based on leakage. The only way the construction could be prohibited is if the Commission denies the carrier’s petition based on Sunoco’s questionable behavior or the possibly limited benefit the United States will receive from the increased throughput. Most importantly, pumping stations will have a domino effect that will have lasting effects on our environment and human health, which should be taken into consideration when the Commission reviews the carrier’s petition the second time around.
Save Our Ill. Land v. Ill. Commerce Comm’n, 2022 IL App (4th) 210008, ¶ 1.
MacPherson, Ill. Court Sends Pipeline Plans Back to Regulators, Assoc. Press (Jan. 13, 2022), https://apnews.com/article/business-environment-and-nature-united-states-environment-north-dakota-6d169c3fab6cd5852c10b26a5afa53a1.
 Save Our Ill. Land, 2022 IL App (4th) 210008, ¶ 3.
 MacPherson, supra note 2.
Save Our Ill. Land, 2022 IL App (4th) 210008, ¶ 3.
Id. at ¶ 6.
Public Utilities Act, 220 ILCS § 5/8-503 (2021).
Save Our Ill. Land, 2022 IL App (4th) 210008, ¶ 6.
Id. at ¶ 72.
Id. at ¶ 73.
Id. at ¶ 9.
Id. at ¶ 9.
Id. at ¶ 122.
Id. at ¶ 9.
Id. at ¶ 127.
“[W]hen the court remands a rule, regulation, order or decision of the Commission, in whole or in part, the Commission shall enter its final order with respect to the remanded rule, regulation, order or decision no later than 6 months after the date of the issuance of the court’s mandate.” Public Utilities Act, 220 ILCS § 5/10-201(e)(vi) (2021).
 Save Our Ill. Land, 2022 IL App (4th) 210008, ¶ 86.