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.”