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PSC Commissioner: Permitting Process Validated By Court Ruling

North Dakota Public Service Commission chairwomen Julie Fedorchak weighed in on the Standing Rock Sioux Tribe’s legal challenge to the Dakota Access Pipeline during an interview with Bismarck NBC affiliate KFYR-TV.

Fedorchak, who oversaw the state’s 13 month review of the project, said she feels the U.S. Court of Appeals decision to deny an injunction further validates the permitting process.

On the protests, Fedorchak said that many of the concerns expressed by Standing Rock have been addressed and urged activists to pack up their camp on the banks of Lake Oahe.

“These protests have run their course, they made their point. A lot of the issues that they’re concerned about have been addressed and dealt with. And that, that these protesters should pull up their camp and move on and let law enforcement and the school children in that area and the businesses in that area and everyone in that area go back to life as normal,” said Fedorchak.

Fedorchak’s comments echo those of many others in recent weeks, including U.S. District Court Judge James Boasberg who noted the U.S. Army Corps of Engineers extensive efforts to accommodate tribal concerns.

MAIN Coalition Statement Regarding Court Ruling, Tribal Consultations

Today, MAIN Coalition spokesman Craig Stevens released the following statement discussing the U.S. Court of Appeals decision to deny the Standing Rock Sioux Tribe’s injunction request as well as this evening’s tribal listening session in Phoenix, AZ:

There is no reasonable reason for the federal government to continue its delay of the necessary easement to allow for the ultimate completion and operation of the Dakota Access Pipeline. The Army Corps of Engineers and Dakota Access, LLC, have labored for more than two years, meeting with hundreds – if not thousands – of individuals and groups to plot out the safest, most sensible route for the pipeline.

The 1,172 mile pipeline has been approved by four states and the federal government and has received all necessary permits and easements, except for the mere formality of an easement for approximately 1,100 feet abutting and under Lake Oahe which would parallel an existing natural gas pipeline and which has already been approved by the Army Corps of Engineers.

It is nearly 60 percent built and supports more than 8,000 jobs, at a cost of more than $1.6 billion so far.  And, once operational, it will be among the most technologically advanced pipelines in the world.

Now, two courts have agreed that the Army Corps followed the letter of the law: first Judge Boasberg in his initial decision and then the Appellate Court in its order.  Additionally, considering the painstaking review and accommodations that were made on the final pipeline route, we would argue that the Corps and company followed the spirit of the law and the intent of the lawmakers.

We recognize the importance of consulting with all interested parties and applaud the government for holding its meetings with tribal leaders to discuss appropriate processes for future projects.  However, the government cannot reasonably say that any disagreement equates to a veto.  If that becomes the standard then no infrastructure project of consequence will ever again be completed in this country.

Our nation is a nation of laws which includes regulations that were written to facilitate life in a civilized society.  Regulations are intentionally apolitical to allow businesses and individuals to live with certain rules and expectations outside the bounds of political discourse.  If we can no longer rely on the certitude of duly passed and implemented laws and regulations, it could ultimately lead to chaos; or, at the very least, an understandable confusion among American business leaders and citizens as to which laws and regulations are meaningful and which can be ignored.

The last administrative action on the final 1,100 feet of the Dakota Access Pipeline now rests with the Obama Administration.  We hope and expect that they do the right thing: issue the easement for construction under Lake Oahe without further delay.  To do otherwise would undermine our nation’s regulatory regime and chill American infrastructure development, costing Americans their jobs and, ultimately, our nation its progress.

Podcast: Richard Epstein Probes Legal Arguments in Dakota Access Pipeline Debate

Professor Richard Epstein discusses the legal and policy arguments surrounding the Standing Rock Sioux Tribe’s challenge to the Dakota Access Pipeline in a newly released podcast.

Epstein, a senior fellow at Stanford University’s Hoover Institution and NYU law professor, has closely followed the Standing Rock Sioux Tribe’s legal challenge to the Dakota Access Pipeline.

  • Forbes Magazine, 10/3/16, “Finish Construction On Dakota Access Now,” by Richard Epstein
  • Forbes Magazine, 9/14/16, “Why The DOJ Order To Shut Down Construction On The DAPL Pipeline Is Legally Indefensible,” by Richard Epstein

Over the past few months he has offered a number of popular reviews on the court proceedings, including the two above columns that appeared in Forbes Magazine.

MAIN Coalition Statement on Court Decision

The U.S. Court of Appeals has ruled to dissolve its administrative injunction and allow Dakota Access to  move forward with construction up to Lake Oahe. In a statement, MAIN Coalition spokesman Craig Stevens welcomed the announcement:

We are pleased, but not surprised, by the Court’s decision as this demonstrates that the Army Corps of Engineers did, indeed, meet the requirements required by the law.  As laid out in Judge Boasberg’s opinion, the corps consulted 389 times with 55 tribes including the Standing Rock Sioux. Not only was the letter of the law met, but considering the lengths the corps and Dakota Access, LLC, went, so too was the spirit.

We continue to believe that as long as the ultimate administrative and judicial decisions are based on the facts, science, engineering, and the rule of law the Dakota Access Pipeline will become operational without additional delay.

Stevens: Politics Trumping Facts on Dakota Access

MAIN Coalition spokesman Craig Stevens put facts over fiction in a new opinion piece discussing the political debate surrounding the Dakota Access Pipeline. Writing in the Washington Examiner, Stevens discusses how protesters from the Standing Rock Sioux Tribe have tried and failed stop the landmark infrastructure project under the pretense of false, overwhelming debunked claims.

“In the case of construction on the Dakota Access Pipeline, the opposition believes they are indeed entitled to their own facts despite overwhelming evidence to the contrary. As they lost on those facts and the law, opponents turned to political allies to stop a project that was duly approved and is nearing completion,” Stevens wrote.

He goes on to note that activists have now resorted to backdoor political meandering to achieve a goal that both the facts and the law have proven wrong.

“Unable to persuade regulators or the courts to stop the pipeline, opponents have turned to friends in high places. This is exactly the sort of insider political trading that so many Americans of all political persuasions are sick of seeing. Americans are losing faith in our political institutions precisely because they think the powerful and well-connected use their influence to bypass procedures the rest of us have to follow.”

Stevens concludes with the sobering reality, that if not stopped, reckless political posturing will have far-reaching consequences.

“A political intervention now will do more than squander $2.5 billion, lay off thousands of workers and block access to an important supply of domestic energy. It will further undermine faith in the American political process at a time when that faith is at historic lows. Surely it would be best to stop the politics and let the proper legal and regulatory processes work.”

Click here to read Stevens’ full opinion piece.

Dakota Access Nears Finish Line in North Dakota

Construction work on the Dakota Access Pipeline (DAPL) is nearing the finish line in North Dakota according to a progress report posted by Public Service Commission (PSC).

According to the Bismarck Tribune, DAPL’s September construction report shows that 87 percent of the project has been completed in North Dakota. The project, which currently employs more than 8,000 hardworking men and women, made significant progress in September despite daily accounts of unlawful, illegal behavior at worksites across the state. Earlier in the week, the Pipeline and Hazardous Materials Safety Administration (PHMSA) told state regulators that a majority construction and testing in North Dakota should be complete by the end of October.

Work on the pipeline is nearing completion along the rest of the four-state route as well. In Iowa, Sheldon-based 1550 KIWA-AM reported solid progress across the 18 counties traversed by the project and an article in South Dakota characterized DAPL as being nearly complete.

Don’t Ignore Labor Support for Dakota Access

For more than two years, the five skilled craft unions have shown their support for the Dakota Access Pipeline as it was reviewed, exhaustively vetted, and then approved by four states and federal regulators.  And recently, the AFL-CIO lent their support for the project as well.

The members of the labor organizations that support and will build the Dakota Access Pipeline deserve to have their voices heard.  The admiration should allow the Dakota Access Pipeline to finish construction.

MAIN Coalition Responds to Today’s Oral Arguments at the U.S. Court of Appeals

Today, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments from the Standing Rock Sioux Tribe, U.S. Army Corps of Engineers, and Dakota Access. The Court is currently weighing whether or not to grant the Standing Rocks request for a emergency injunction against the pipeline project. Upon the hearing’s conclusion, MAIN Coalition spokesman Craig Stevens issued the following statement:

“We’re not going to attempt to divine the outcome of today’s hearing, however as Judge Boasberg articulated in his thoughtful and thorough opinion on September 9, the Army Corps of Engineers followed the proper regulatory process in consulting with 55 Native American tribes, including the Standing Rock Sioux, 389 times.  Judge Boasberg went on to say in his opinion “that the Corps exceeded its NHPA obligations”.   Even the Appellate Court, today, pointed out the Standing Rock Sioux tribe refused to engage several times with the Corps and Dakota Access, LLC. 

The MAIN Coalition continues to believe as long as the ultimate decision on the Dakota Access Pipeline is determined based on the facts, science, engineering, and the rule of law it will be allowed to be completed and become operational without delay.”

For more insight on the case, we invite you to check out Forbes contributer and New York University law professor Richard Epstein’s analysis on the legal proceedings.

Energy Supply Chain Industries, Workers Urge Dakota Access Completion

A coalition of some of the nation’s top energy supply chain industries and workers has come together to urge President Obama to allow the Dakota Access Pipeline (DAPL) to be completed. In a new letter, leaders of 18 different organizations called on Obama to support infrastructure development, quoting his 2015 State of the Union Address that called for just that.

“21st century businesses need 21st century infrastructure ‐‐ modern ports, stronger bridges, faster trains and the fastest internet. Democrats and Republicans used to agree on this,” President Obama said.

Furthermore, the letter notes the extensive permitting process that DAPL underwent as well as the monumental amount of capital the project has already injected into the U.S. economy.

Wednesday’s letter comes just two days after the heads of five trade unions called on Obama to allow the project to move forward, saying that current delays have already resulted in lost jobs and threaten many more.

Federal Inspectors Play Active Role in Dakota Access Construction

The North Dakota Public Service Commission (PSC) met with representatives from the Pipeline and Hazardous Materials Safety Administration (PHMSA) Tuesday and received an updated on the agency’s safety inspections being conducted on the Dakota Access Pipeline.

“The discussion with PHMSA reinforced the value of new, state-of-the-art pipelines as the preferred method for transporting oil,” said PSC Commission Chairwomen Julie Fedorchak in a press release following the meeting. “It’s safer for the public and for the environment.

According the release, PHMSA officials ensured commissioners that inspectors continue to play an active role in the in the DAPL construction process. While the PSC was responsible for approving the pipeline in North Dakota, PHMSA has regulatory authority over the construction, operation, and maintenance of DAPL. During construction, inspectors focus on a multitude of different areas, including ensuring proper training and observing the pipe’s installation.

“The work of these neutral, third-party PHMSA inspectors provides great comfort for concerned citizens that this important oil transmission pipeline is being installed to meet or exceed all reasonable safety standards,” said Commissioner Randy Christmann.

The release further noted that a majority construction and testing in North Dakota should be complete by the end of October.