Richard Epstein: Trump Administration Not Bound By 11th Hour Obama Reversal Of USACE Recommendation

One of the most interesting points from yesterday’s status hearing in Judge Boasberg’s court was the attorney for the Standing Rock Sioux tribe stating that the government couldn’t retract its Notice of Intent to Prepare an Environmental Impact Statement.

From Bloomberg:  “Jan Hasselman, lead lawyer for the suing Sioux tribes, told the judge that because the Army Corps had already committed to an environmental impact review of the lake crossing, any easement granted before that analysis is complete “would be unlawful.”” (Bloomberg, 2/6/17, “Dakota Access Pipeline Decision May Come by Week’s End,” by Andrew M Harris).

This seems to be the one of the final straws at which project opponents are grasping.  EarthJustice, on its website, doubles down saying:

Could President Trump reverse the Dec. 4 decision?

 Reversing the Dec. 4 decision would be arbitrary, capricious and unlawful, and we would challenge it in court. The government has made a considered decision that this pipeline needs more review. There are important issues on the table concerning tribal treaty rights and environmental justice that the Corps decided need a full review.

 Of course, Earthjustice ignores the reality that the “arbitrary” and “capricious” act was done by political appointees in the Obama Administration in the form of its Dec. 4 memo and more so in its Jan. 17 announcement (via leaked tweet) of the Notice (just 3 days before a new administration was to take office).  For months the federal government – specifically the Army Corps of Engineers – asserted that Dakota Access had done everything right, that the Army Corps had followed the required regulatory process, and that the pipeline would have “no significant impact” on Lake Oahe.

It’s also interesting that EarthJustice said “that the Corps decided need a full review”; because that is provably false.

On Dec. 3, 2016, (one day before Dec. 4 (see above memo)) the Army Corps laid out its rationale for approving the easement in this detailed, fact-based 9-page memo to the Secretary of the Army, which the Obama Administration refused to release.  In fact, the Obama Administration’s political appointees’ decision to overrule the career Army Corps personnel actually fits the literal (yes, literal) definitions of arbitrary and capricious.

MAIN posed this question to an attorney, Professor Richard Epstein, from NYU.  Here is his comment:

 “Mr. Hasselman’s position is utterly ungrounded in established principles of administrative law.  As SRST has itself previously argued, it is only final orders that are subject to judicial review at all.  So that the decision to alter the administrative treatment of any case prior to final judgment is beyond review.  The SRST can, of course, seek to challenge the final permit given to Dakota Access, but considering the airtight case raised by the Army Corps of Engineers, that lawsuit would most likely be dismissed as frivolous.”

 “It is inconceivable that the Trump administration is bound by an eleventh hour decision of the Obama administration that disregarded a prior judgment in favor of the pipeline and the unambiguous approval of that application by the Corps.  It is doubly improper to insist that the Corps now conduct a review that could last for years when current administrative law lets the government change its course of direction from a prior administration without having to explain why.  There is no reason for the Trump or any other administration, to give the opponents of a meritorious project the benefits of endless delay, when every one of their factual and legal objections have been presented and rejected multiple times in both judicial and administrative settings.”


Statement On Reports An Easement For DAPL Will Be Issued

MAIN Coalition spokesman Craig Stevens issued the following statement regarding reports from Capitol Hill that the Acting Secretary of the Army has directed the final easement be issued for the Dakota Access Pipeline:

“After nearly 1,000 days since the beginning of this process, we are hopeful that we may be one step closer to the ultimate completion of the project. We appreciate that President Trump is keeping his word to move lawful, carefully sited energy projects forward. This is a positive development for the pipeline, construction workers across the country, and those who seek to invest in our nation’s infrastructure. It also begins the clock that will mark down the moments until the dedicated local and state law enforcement officers, as well as community members throughout North Dakota, will be able to get back to their normal lives. And finally, e hope that individuals on all sides of this issue will be able to move forward peacefully as this process draws to a close.”

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MAIN Coalition Statement on Dakota Access Status Hearing

MAIN Coalition spokesman Craig Stevens issued the following statement following today’s status conference that was held in light of President Trump’s order directing the Secretary of the Army to move forward with issuing the easement for the Dakota Access Pipeline:

“We appreciate the long, hard hours local and state law enforcement officers have endured in an effort to protect the peace by serving as a buffer between the protesters and the workers.  We hope that soon, President Trump will issue the final easement, construction will be completed, and everyone can go back to their normal lives.”

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The Pipeline Debate is a Waste of Energy

In a burst of executive orders, President Trump sought Tuesday to revive two controversial oil pipelines — the Dakota Access Pipeline and the Keystone XL Pipeline. In the process, he reanimated a stale, mostly irrational debate about infrastructure projects that never merited such controversy.

Anti-pipeline activists bear a great deal of blame for this senseless state of affairs. Despite study after study showing that Keystone XL would have negligible effects on the climate, they built a movement around denying the permit the pipeline needed to cross the Canada-U.S. border, backed by implausible arguments about permanently trapping Canadian oil in the ground by choking off access to it. The movement was misleading — stopping the pipeline would not have really moved the needle one way or the other for the environment — and so it was an enormous misallocation of time and energy. Yet they got their prize, anyway, prevailing on the Obama administration to halt the project.

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No More Keystone Capers

President Trump is making short work of campaign promises, and on Tuesday he signed executive orders reviving the Keystone XL and Dakota Access pipelines. The resurrection is good news for the economy, but one question is whether he’ll sink the projects with his protectionist impulses.

Mr. Trump signed an executive order inviting TransCanada to apply again for a permit for the Keystone XL pipeline, which the Obama Administration rejected to indulge the anti-carbon obsessions of Democratic campaign donors. Another Trump directive aims to expedite the Dakota Access pipeline, which is 90% finished but was halted by President Obama amid protests. A federal judge ruled that the government had met its legal obligations, but the Obama Administration suspended work anyway.

Such carve outs for progressive constituencies are one reason voters rejected Democrats in November, and the pipelines promise broader prosperity. Keystone is predicted to spin off 20,000 construction and manufacturing jobs, many of them to be filled by union workers, and add $3 billion to GDP. The pipeline could move 830,000 barrels a day along the route from Alberta to Nebraska; up to 100,000 would come from North Dakota, where a glut of crude has to travel by rail to reach refineries built to process it. The efficiencies will ripple across the oil and gas industry.

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U.S. Energy Takes a Major Step Forward

For years, the Obama administration used its executive authority to obstruct two crucial energy infrastructure projects: the Dakota Access pipeline and the Keystone XL pipeline.

Today, the obstruction finally came to an end when President Donald Trump signed two executive orders. This action affirms our new president’s respect for the rule of law and his support for responsible infrastructure development, energy production, and job creation.

One of the executive orders directs all federal agencies, including the U.S. Army Corps of Engineers, to expedite approval of the easement to complete construction of the Dakota Access pipeline project.

Another order invites the TransCanada Corp. to resubmit its application for the Keystone XL pipeline and directs the State Department to expedite its review.

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Dakota Access Memo Cheers Pipeline Supporters

A pair of agency-directed memos signed Tuesday by President Donald Trump could force completion of the controversial Dakota Access pipeline in North Dakota as well as breathe new life into the Canadian-based Keystone XL pipeline.

Trump’s memo did not grant a drilling easement for the $3.8 billion Dakota Access project to cross U.S. Army Corps of Engineers land on the Missouri River/Lake Oahe but directs the agency to expedite review with the idea that prior reviews already satisfy federal law.

Congressman Kevin Cramer said he believes the memo will force the agency to rescind the decision it made last week to begin a full-blown environmental impact statement on the crossing and issue an easement in short order.

Cramer said he made contact Tuesday with federal law enforcement agencies, including the CIA and the U.S. Marshal service, in anticipation of pushback from hundreds of pipeline protesters camped near the water crossing just north of the Standing Rock Sioux Reservation when construction resumes.

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Statement on President Trump’s Executive Order on the Dakota Access Pipeline

MAIN Coalition spokesman Craig Stevens issued the following statement following President Trump’s signing of an executive order directing the federal government to expedite the issuance of the final, already approved, easement for the Dakota Access pipeline:

“We applaud and appreciate President Trump’s immediate and decisive action to expedite the final easement for the Dakota Access Pipeline. President Trump’s decision shows businesses that the rule of law will be respected and demonstrates an affirmation of regulatory certitude to those looking to invest in America.

“The 1,172-mile project has been fully approved by four states and the federal government for months and is more than 95 percent complete at a cost of about $3.5 billion so far. Once operational, it will be among the safest, most technologically advanced pipelines in the world, delivering more than 450,000 barrels of light sweet crude oil per day in an environmentally sensitive and cost effective manner.”

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Statement on President Trump’s Expected Approval of the Dakota Access Pipeline

MAIN Coalition spokesman Craig Stevens issued the following statement in response to news that President Trump will sign an executive order allowing the Dakota Access Pipeline to move forward:

“We are hopeful and optimistic that President Trump will issue the final easement for the Dakota Access Pipeline and allow Keystone to move forward. It will not only be a positive development for these two projects but also for our nation’s resource development and energy infrastructure as a whole.”

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Cramer Says Trump Administration Will Act Quickly to Resume, Complete DAPL

WASHINGTON, D.C. – Representative Kevin Cramer said Friday he thinks the Trump administration will act swiftly to resume and complete construction of the Dakota Access Pipeline.

On a Fargo radio show Friday morning, Creamer said he expects the Environmental Impact Study, granted earlier this week under the Obama administration, will be rescinded, possibly as soon as Monday.

He said that the easement to drill under Lake Oahe would be ordered and issued next week, and that construction to finish the line would begin soon.

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