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Richard Epstein: Lawless Bureaucratic Obstruction Is No Substitute for the Rule of Law in the Dakota Access Decision

In a piece published in Forbes, Richard Epstein, an NYU law professor, senior fellow at the Hoover Institution, and senior lecturer at the University of Chicago Law School examines the Army Corps of Engineers Nov. 14 and Dec. 4 memoranda regarding the easement for the Dakota Access Pipeline at Lake Oahe and discusses how the Corps in fact favors the granting of the easement and completion of the project.

Following an in depth legal analyses of the rulings previously put forward by Judge Boasberg of the U.S. District Court for the District of Columbia, as well as the U.S. Circuit Court of Appeals, in addition to the memos issued by the U.S. Army Corps of Engineers, Mr. Epstein finds the December 4th memo, “wholly flawed, manifestly political, and insufficient.”

What is surprising is that from a legal sense this case is indeed groundbreaking, because to Mr. Eptseing’s “knowledge there has never been a situation where a project has lost its permits after the government, through the Army Corps, won its litigation against an opponent to the project.”

Despite multiple straightforward findings addressed in the memos, that oftentimes support the final construction of Dakota Access at Lake Oahe, the Corps has found reasons to dig deeper that are less than satisfactory and in fact offer no real solution or alternative other than further study, despite the fact in-depth analyses have already taken place over two years.

As the legal case draws on, it becomes more clear that death by delay appears once again to be a favored tactic, as no real solutions are offered by project opponents. But within a few short weeks, the Corps arguments may be moot as a new presidential administration prepares to take office, and new pro-infrastructure orders are handed down.


NY Post Editorial “Pipelines Are the Safest Form of Moving Gas and Oil”

A recent editorial from the New York Post highlighted the stacked deck that pipeline companies often face in New York, a movement that seems to be permeating the greater discussion on pipelines nationwide.

In fact, according to the editorial board “the Dakota fight was complicated by supposed wrongs to one Native American tribe, but plenty of the protesters were driven by green ideology: a movement that slams every pipeline as an “environmental threat.”

The reality is that pipelines are in fact the safest means of transporting oil and gas, and where pipelines do not exist the oil and gas does not stop, it simply is moved on less safe forms of transportation. In many cases this is also more expensive, a cost passed along to regular folks at the pump or in our heating bills.

In the words of the editorial, the protests surrounding the pipeline are a hysteria, with little thought given to the long term cost implications that will unfortunately be borne by working men and women throughout the country.


USA Today Editorial Supports Completion of Dakota Access

The USA Today Editorial Board called for the completion of the Dakota Access Pipeline in a piece published on December 5th.

According to the board’s piece, despite attempts to block the project, oil produced in North Dakota will not be kept in the ground.

“The issue of where to route pipelines is always going to be a sticking point. Native tribes are not the only ones who would prefer to not have them in or near their backyards. But pipelines fill a vital need for the economy and for America’s energy security, and therefore need to be built.

As for combating climate change, the ultimate goal of many environmental groups, taking on individual pipelines is not the answer. The answer is to impose costs on carbon emissions so polluters can’t keep using the atmosphere as a free dumping ground for greenhouse gases. That way, markets can figure out the best way to adapt.

Pipeline fights can make for a great spectacle. But, no matter which side wins, they will have little impact on the environment beyond their immediate environs.”


Wall Street Journal Op-Ed Highlights Inaccuracies In Dakota Access Reporting

A recently published Wall Street Journal op-ed from Congressman Kevin Cramer of North Dakota dispels many of inaccuracies being reported about the project and highlights the extensive process and review of the Dakota Access Pipeline project.

In the op-ed Congressman Cramer states the following facts:

  • This isn’t about tribal rights or protecting cultural resources. The pipeline does not cross any land owned by the Standing Rock Sioux. The land under discussion belongs to private owners and the federal government. To suggest that the Standing Rock tribe has the legal ability to block the pipeline is to turn America’s property rights upside down.
  • Two federal courts have rejected claims that the tribe wasn’t consulted. The project’s developer and the Army Corps made dozens of overtures to the Standing Rock Sioux over more than two years. Often these attempts were ignored or rejected, with the message that the tribe would only accept termination of the project.
  • Other tribes and parties did participate in the process. More than 50 tribes were consulted, and their concerns resulted in 140 adjustments to the pipeline’s route. The project’s developer and the Army Corps were clearly concerned about protecting tribal artifacts and cultural sites. Any claim otherwise is unsupported by the record. The pipeline’s route was also studied—and ultimately supported—by the North Dakota Public Service Commission (on which I formerly served), the State Historic Preservation Office, and multiple independent archaeologists.
  • This isn’t about water protection. Years before the pipeline was announced, the tribe was working with the Bureau of Reclamation and the Army Corps to relocate its drinking-water intake. The new site sits roughly 70 miles downstream of where the pipeline is slated to cross the Missouri River. Notably, the new intake, according to the Bureau of Reclamation, will be 1.6 miles downstream of an elevated railroad bridge that carries tanker cars carrying crude oil.
  • This isn’t about the climate. The oil that will be shipped through the pipeline is already being produced. But right now it is transported in more carbon-intensive ways, such as by railroad or long-haul tanker truck. So trying to thwart the pipeline to reduce greenhouse gas could have the opposite effect.

What’s left that this issue could be about? Politics.

Unfortunately all the processes and laws in the world could not stop the politics of an outgoing administration attempting to cement a legacy. But the beauty of politics is that they are hardly permanent.

In 44 days a new presidential administration will have the opportunity to do the right thing; enforce the law, end a dangerous standoff, and release the final easement for Dakota Access to continue construction.


Energy Transfer Partners and Sunoco Respond to Dept. of the Army Statement

Following the announcement that the U.S. Army Corps of Engineers would not issue an easement to Dakota Access at this time for the crossing of Lake Oahe, Energy Transfer Partners and Sunoco Logistics issued a statement declaring the decision a “purely political action.”

According to the statement, “For more than three years now, Dakota Access Pipeline has done nothing but play by the rules. The Army Corps of Engineers agrees, and has said so publicly and in federal court filings. The Corps’ review process and its decisions have been ratified by two federal courts. The Army Corps confirmed this again today when it stated its ‘policy decision’ does ‘not alter the Army’s position that the Corps’ prior reviews and actions have comported with legal requirements.’”

“The White House’s directive today to the Corps for further delay is just the latest in a series of overt and transparent political actions by an administration which has abandoned the rule of law in favor of currying favor with a narrow and extreme political constituency.”

The companies remain committed to ensuring that the project will be completed and will move forward.


MAIN Coalition Members and Advisors Release Statement on Administration’s Decision Not to Issue Final Easement

Following the Obama Administration’s decision to not grant an easement for the Dakota Access Pipeline at Lake Oahe, MAIN Coalition members and advisors issued the following statements:

Coalition Advisors

Ret. Major General James “Spider” Marks

“Today’s decision by the Obama Administration to deny the easement for the Dakota Access Pipeline is a politically motivated action with a complete disregard for the rule of law and the regulatory process that was so carefully followed over two years.

To deny the easement, based on the influence and unlawful actions of the unpeaceful protesters I saw firsthand is baffling and unlike anything I have ever seen.

Today’s decision will only embolden, empower, and engage future activity on other major infrastructure projects and create detrimental consequences for our nation’s energy security, economy, and infrastructure development for years to come.”

Brigham McCown, Former PHMSA Administrator

“As a supporter of the institutional process, I am disheartened to see the length to which this current administration has chosen to politically manipulate and undermine mature programs administered by the career civil service.

There is simply no justification for today’s decision which undermines every single proposed infrastructure project across America. The signal it sends is tragic, that the government can change its mind after a project has been approved and construction has started. This ill-conceived notion says that the rules of the game are subject to manipulation without recourse, at least until a new administration takes office.

The decision to review alternate routes was already rejected, and the government offers no justification for rescinding its previous findings of no adverse impacts and it yet another example of government obstruction of key infrastructure projects which would have increased energy safety and environmental stewardship.”

Coalition Members

Ed Wiederstein, Chairman of the MAIN Coalition

“It is extremely disappointing that the administration has decided to take this course of action on what should be a mere formality for a project that is more than 90 percent complete.

Dakota Access has worked for more than two years to identify the safest, most sensible route for the pipeline and once operational, this project will be among the most technologically advanced pipelines in the world.

Instead this purely political decision has undermined our nation’s regulatory structure and sent a chilling message to those looking to invest in our nation’s infrastructure network.”

Bill Gerhard, President of the Iowa State Building and Construction Trades Council

“It is completely unacceptable that the administration has denied the easement on the final, 1,000 foot section of an 1,200 mile project. This project was denied because of special interest opponents who have already stated their mission is far greater than this particular project. And the reality is this decision will have implications far beyond than those who are protesting it’s development.

The over $1 billion private investment in Iowa alone is critical to modernizing our nation’s energy transportation network and Iowa stands to benefit greatly in the years to come from the millions in added tax revenues during construction that is already being generated. The skilled tradesmen from many communities along the pipeline’s route already preparing for the coming economic boon that will accompany the construction phase of the project were dealt a serious blow by this decision.”

Andy Peterson, President of the North Dakota Chamber of Commerce

“The refusal to grant an easement for the Dakota Access Pipeline in North Dakota by the federal government is deeply concerning for future business and infrastructure investments in our state.

Despite receiving approvals from each state along the route, a finding of No Significant Impact by the U.S. Army Corps of Engineers, court rulings from the District and Circuit Court of Appeals for the District of Columbia, and the support of thousands of individuals in the business, agriculture, and labor communities, political decisions ultimately overrode informed judgement.

If private companies cannot rely on the government to enforce the rule of law, and ensure that lawful investments can be carried through despite two full years of governmental review and approvals, then there is very dangerous precedent being set by the Obama Administration.”

Ron Ness, President of the North Dakota Petroleum Council

“The Army Corps of Engineers’ refusal to grant an easement for the Dakota Access Pipeline to cross Lake Oahe is extremely disheartening.

Despite a thorough review by the U.S. Army Corps of Engineers, and an approval by the North Dakota Public Service Commission, political decisions made by the Obama Administration ultimately overruled sound engineering judgment, and will only serve to enflame ongoing tensions in Morton County.

The North Dakota Petroleum Council looks forward to the enforcement of the rule of law and the approval of an easement by the incoming Trump Administration.”

Dawna Leitzke, Executive Director, South Dakota Petroleum and Propane Marketers Association

“The South Dakota Petroleum and Propane Marketers Association is deeply troubled by the refusal to grant the last easement for the Dakota Access Pipeline by the Obama Administration.

This refusal threatens the future of both energy independence and ensuring a low cost of supplying a vital resource that drives our economy from agriculture, to manufacturing, to consumer products and services.

The Dakota Access Pipeline remains a critical investment and we look forward to its approval and completion after the Obama Administration leaves office in a few short weeks.”


MAIN Coalition Statement on Refusal To Grant An Easement at Lake Oahe

Following the Obama Administration’s decision to not grant an easement for the Dakota Access Pipeline at Lake Oahe, MAIN Coalition spokesman Craig Stevens issued the following statement:

“This purely political decision flies in the face of common sense and the rule of law.  Unfortunately, it’s not surprising that the President would, again, use executive fiat in an attempt to enhance his legacy among the extreme Left.  That the President continues to believe that he is above the law is simply un-American and it is this arrogance that working class Americans soundly rejected on November 8.  For millions of hard-working people across the heartland, January 20 cannot come soon enough.

“President Obama’s decision not to issue the final easement is a rejection of the entire regulatory and judicial system, as well as the scores of Army Corps of Engineers and civil servants who toiled for more than 800 days to ensure the process was followed correctly, in accordance with the law.

“The pipeline – at no point – crosses the Standing Rock Sioux tribe’s reservation, is collocated with a three-decades old natural gas pipeline, and has received all requisite state and federal approvals.  The only remaining piece of the 1,172-mile puzzle was the final easement for a 1,000 foot portion abutting Lake Oahe.  There is no reasonable logical, factual, environmental, or scientific reason for this not to be issued – in fact the Army Corps of Engineers had already recommended the approval of the easement.

“With President-elect Trump set to take office in just a few weeks, we are hopeful that this is not the final word on the Dakota Access Pipeline.”

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Statement from Ret. Major General Spider Marks on Veterans Joining DAPL Protests

Ret. Major General James “Spider” Marks issued the following statement Saturday in response to reports that a number of veterans will be traveling to North Dakota next week to join protesters opposing the Dakota Access Pipeline:

“As people, including some veterans, are traveling to North Dakota this weekend, I would urge all sides to respect and honor our shared military service.  Veterans are represented throughout local law enforcement, among pipeline construction workers, as well as the protesters.  All of us, no doubt, have lost friends or colleagues and spilled our own blood to protect the American freedoms that we all cherish.

“I am concerned that the protests have grown, and will continue to grow, more violent and targeted against law enforcement and pipeline construction personnel and equipment.  We all respect the right to be heard, but I implore all protesters to demonstrate in a peaceful and lawful manner.  As brother and sister veterans, we should respect each other and our shared sacrifice.”

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North Dakota Congressman Offers Harsh Rebuke of Pipeline Critics

North Dakota Congressman Kevin Cramer offered a lengthy, detailed response to Dakota Access Pipeline critics during a Friday morning speech on the House floor. Cramer, an advocate for American energy independence, addressed both the Obama Administration’s inaction and the unlawful protest activities.

“Mr. Speaker, for more than 3 months, thousands of rioters disguising  themselves as prayerful people, peaceful protesters, have illegally  camped on Federal land owned or at least managed by the U.S. Army Corps  of Engineers, owned by the taxpayers of this country. … At the center of this issue is an administration that refuses–not just refuses to follow the rule of law, but enables and encourages the breaking of the law, beginning with the fact that thousands of illegal protesters are allowed to camp, to trespass on federally owned land.”

Cramer, who served as one of North Dakota’s utility regulators for nine years before being elected to Congress, went on to emphasize that pipelines like Dakota Access are the safest, most efficient, and environmentally friendly way to transport our energy resources. Without the pipeline, Bakken producers will still send product to market, but will be forced to rely on less reliable alternatives like railcars and trucks, Cramer added.

In addition, Cramer strongly disputed misguided rumors about decisions made during the routing of the pipeline.

“[The Dakota Access Pipeline] was always planned for this location for a very good reason, Mr. Speaker. … The main reason this route was chosen was because it was the least intrusive on the environment, on waterways, on private property, and on cultural resources. The other locations that were under consideration that were not  chosen crossed many more bodies of water and were much closer to many  wells and cultural resources and very important historical resources.  It was 48 extra miles of previously undisturbed field areas. This is  and was the best route because it is an existing corridor. In this same  corridor, there is already a natural gas pipeline. There is already a  large electric transmission line. That is why it was chosen.”

Cramer concluded by discussing the impact the months long protest is having in North Dakota, noting that the state government has had to borrow $17 million to cover law enforcement costs.


Snopes: Bismarck Never Rejected Dakota Access Route

Respected fact checking website, Snopes.com responded on Wednesday to misguided rumors that the Dakota Access Pipeline was rerouted around Bismarck as a result of local opposition.

CLAIM: The Dakota Access Pipeline (DAPL) was re-routed through the Standing Rock Reservation after Bismarck’s mostly-white residents refused to allow it near their water supply.

WHATS TRUE: The U.S Army Corps of Engineers originally considered a Dakota Access Pipeline route north of Bismarck but abandoned the idea, citing eleven miles of additional pipeline length and dozens more crossings.

WHATS FALSE: “Mostly white” residents of Bismarck did not refuse to accept the threat to their water supply, and the project was not subsequently forced upon tribes at Standing Rock because white people rejected the risk.

The post goes on to cite an article in the Bismarck Tribune that explains why the current route was always the preferred route:

The U.S. Army Corps of Engineers evaluated the Bismarck route and concluded it was not a viable option for many reasons. One reason mentioned in the agency’s environmental assessment is the proximity to wellhead source water protection areas that are avoided to protect municipal water supply wells.

In addition, the Bismarck route would have been 11 miles longer with more road crossings and waterbody and wetland crossings. It also would have been difficult to stay 500 or more feet away from homes, as required by the North Dakota Public Service Commission, the corps states.

The Bismarck route also would have crossed an area considered by federal pipeline regulators as a “high consequence area,” which is an area determined to have the most significant adverse consequences in the event of a pipeline spill.

Bismarck Mayor Mike Seminary recently echoed these findings, saying that at no point did local officials discuss the alternate route north of the city.

“Bismarck has never been involved in that discussion. Not one policy maker, not one department head, not one city employee has ever been involved in a discussion with regards to a route north of Bismarck …. So move on from that subject. You are wrong and you are creating issues,” Seminary said during a November press conference.


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