The Standing Rock Sioux Tribe (SRST) will face an uphill battle this week in its bid to seek a preliminary injunction against the Dakota Access Pipeline says New York University Law professor and frequent Forbes contributor Richard Epstein.
In an Oct. 3rd column, Epstein makes a convincing case against the tribe, citing the myriad inaccuracies the complaint is built upon as well as the high bar one must satisfy to merit an injunction.
“At this point, it should be an easy matter to deny, especially on appeal, the preliminary injunction. The Tribe, in its papers, insists that some preliminary steps in the approval process were violated, but it makes no attempt to show that these errors, were not cured by the exhaustive process that followed and examined all of the perceived objections, and which, on numerous occasions altered the path of DAPL to respond to the comments from multiple entities by tracking closely with the path of the preexisting Northern Border pipeline.”
Epstein makes frequent reference to U.S. District Court Judge James Boasberg’s Sept. 9thruling and extensive opinion denying the SRST’s motion for the injunction, noting that:
“”The standard of review used by most [appellate] courts, including the federal court system, is an ‘abuse of discretion’ standard.” Under the received wisdom, “[a]n abuse of discretion is a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.” No one could say that this standard is met in dealing with Judge Boasberg’s opinion, it is not likely that the plaintiff can succeed on the merits.”
At a broader level, Epstein says it clear that the SRST has no interest in resolving this dispute under current law, but rather seeks to rewrite the legal framework to its benefit.
“The clear record on this issue is that the Tribe has no interest in working out the particulars of these case, with either the states or the federal government, within the framework of the existing law. Instead, the Tribe is determined to use the current dispute to transform the law so that it can exert a veto right over the operation of the entire pipeline.”
Click here to read Epstein’s full analysis on where the case stands.
Five of the nation’s top skilled craft unions are urging the Obama administration to allow the Dakota Access Pipeline project to proceed without further delay.
In a letter to President Obama, the general presidents of the International Union of Operating Engineers (IUOE), International Brotherhood of Teamsters, Laborers’ International Union of North America (LiUNA), United Association (UA), and the International Brotherhood of Electrical Workers (IBEW) condemned the administration’s eleventh hour decision to halt work on a portion of the $3.8 billion infrastructure project.
“The intervention by the Departments of Justice, Interior, and the U.S. Army to indefinitely halt a project that is more than halfway constructed and has received state and federal approval raises serious concerns about the future of infrastructure development in America, and the livelihoods of our members,” the letter reads.
“We urge you to adhere to the well-established regulatory process for permitting private infrastructure projects and approve the easement for the remaining section of the Dakota Access project without delay.”
According to union leaders, the project delays imposed by the White House have already resulted in lost jobs and threaten many more. “The project is being built with an all-union workforce and workers are earning family-sustaining wages, with family health care and retirement contributions. However, the project delays are already putting members out of work and causing hardships for thousands of families.”
Even as rhetoric and emotions surrounding the Dakota Access Pipeline swell, we have worked to ensure the MAIN Coalition’s language and responses have been fact-based and straightforward.
Having said that, you may have wondered why the MAIN Coalition didn’t have an immediate response to the Congressional letter sent to President Obama yesterday. Honestly, it was because it was so riddled with errors and misinformation that we wanted to make certain our facts were right.
In addition, MAIN Coalition spokesman Craig Stevens had the following to say in response to erroneous letter:
It’s unfortunate that some are trying to move this discussion away from the facts: that the Army Corps of Engineers, the four state governments, and Energy Transfer Partners did everything right in the siting, permitting, and ongoing construction of the Dakota Access Pipeline. Additionally, as context, the current discussion falls on an already-approved portion of the line that runs about 1,000 feet.
To date, the project is nearly 70 percent complete and has supported more than 8,000 jobs, at a cost of over $2.6 billion. The MAIN Coalition continues to believe that as long as the final Administration and judicial decisions are based on the facts, science, engineering, and the rule of law the Dakota Access Pipeline will be allowed to become operational.
Congresswoman Gwen Moore offered an amendment to the Water Resources Development (WRDA) bill that was approved by voice vote on the floor of the House of Representatives Thursday afternoon. In reading the amendment, the MAIN Coalition believes that it refers to process only and is intended to have no bearing on the Dakota Access Pipeline project itself. Having said that, if it does – or is intended to delay the project in any way – that is very, very concerning.
In a statement, MAIN Coalition spokesman Craig Stevens said the following in response to the amendment:
“It appears from our initial reading that Congresswoman Moore’s amendment deals with reviewing the regulatory process only, and should have no impact – whatsoever – on the Dakota Access Pipeline or any other currently sited or approved infrastructure project. Should the Congress and Administration move forward with updating regulations, they must recognize a split in time that honors the regulatory processes in place when a project was reviewed and approved; and utilize any updated requirements on projects to come in the future, after the new regulations are formally in place.
“For the government or judiciary to act in a manner that would penalize – retroactively – already approved private infrastructure projects would have a chilling effect on infrastructure development and bring severe consequences to our economy and American jobs.”
Member of the Laborers International Union of North America (LIUNA) are weighing into the Dakota Access Pipeline debate with a new radio campaign featuring the men and women building it. The Build North Dakota initiative aims to highlight the countless opportunities this project is providing to thousands of skilled Laborers and the quality of work they’re delivering.
“We’ve heard a lot of people offer their opinion on the Dakota Access Pipeline, but what’s missing from the conversation are the perspectives of the people who are living it every day: the landowners whose land the pipeline crosses, and the workers who are building it,” according to LIUNA Local 563 Business Agent and career pipeliner Cory Bryson.
Dakota Access has long committed to utilizing union labor and currently employs more than 8,000 skilled members from LiUNA and an array of different trades, including the International Union of Operating Engineers (IUOE), International Brotherhood of Electrical Workers (IBEW), International Brotherhood of Teamsters, and United Association.
“Hundreds of our members are giving it their all to make sure this pipeline is built safe, and built the right way,” said Bryson. “We want people in North Dakota and beyond to understand what we do, and how seriously we take our work.”
A team of archaeologists from the State Historical Society of North Dakota has found no evidence to support the Standing Rock Sioux Tribe’s claim that sites of cultural significance were destroyed by Dakota Access Pipeline (DAPL) construction activities. A new survey at a work area west of Highway 1806 revealed no human burials or cultural materials, wrote chief archeologist Paul Picha in a September 22 memo obtained by the Say Anything Blog.
These findings further validate the Historical Society’s original conclusion that no sites of historical or cultural significance will be adversely affected by the pipeline’s carefully determined route. “The State Historic Preservation Office had previously concurred with a cultural resource survey of the pipeline route that found that no significant sites would be affected. As noted by U.S. District Judge James Boasberg in a recent ruling, DAPL undertook extensive efforts to avoid sensitive areas, including rerouting the pipeline 140 times in North Dakota alone.
Prior to the survey, skeptics had noted that this particular area along the route had previously been dug up for an existing natural gas line, making the discovery of anything significant highly remote.
In just a few hours Secretary Clinton and Mr. Trump will engage in their first presidential debate. Among the topics they are expected to discuss are their plans to strengthen our nation’s economy. In advance of their debate, MAIN Coalition spokesman Craig Stevens issued the following statement:
As Secretary Clinton and Mr. Trump discuss their visions to support our nation’s economic prosperity, there will be one area that they both can agree: encouraging private infrastructure development. There is no debate that our nation’s infrastructure needs updating; and there are American companies ready to employ American skilled labor to get the job done right. But companies need regulatory certainty in order to dedicate the financial resources necessary to complete these needed massive projects.
Right now, a stretch of the Dakota Access Pipeline is in limbo because – despite being fully approved by the relevant four states and the U.S. Army Corps of Engineers and being more than 60 percent complete – the Administration has decided to reevaluate the regulatory process. This is indeed troubling and could have a chilling effect on private infrastructure development as companies, who have followed the process correctly and done everything right, risk having their projects stopped right in the middle construction.
This is no way to run an economy.
The members of the MAIN Coalition and all Americans will be listening to both candidates tonight to see who articulates the best vision for our nation’s economy, including the best way to support necessary U.S. infrastructure development.
On Friday, September 23, the Department of the Interior, Justice Department, and Army Corps of Engineers released a schedule for upcoming consultations with Native American tribes. Following the announcement MAIN Coalition spokesman Craig Stevens issued the following statement:
The MAIN Coalition agrees that tribal consultations should continue to play an important role in prospective infrastructure development. With regards to the Dakota Access Pipeline, the official and judicial records show the Army Corps of Engineers and the company held at least 389 consultations with 55 Native American tribes as well as several hundred other consultations with interested individuals, groups, and elected officials throughout the course of the permitting process. In part as a result of those consultations, the final path avoids culturally and environmentally sensitive areas.
The process to approve the Dakota Access Pipeline was done correctly; and these new discussions should not impact, retroactively, any ongoing infrastructure project or any infrastructure project that is currently under review for permitting. To do so would have a chilling effect on private infrastructure development, negatively impact our economy, and cost Americans their jobs.
Should the federal or state governments update their regulations moving forward, they should be transparent, consistent, and reasonable so the regulatory process can ameliorate the concerns of our nation’s various constituencies while not stifling America’s economy.
In quotes from his memorandum opinion, Judge Boasberg cemented the fact that the U.S. Army Corps of Engineers, as well as the Dakota Access Pipeline fulfilled their required consultation duties, and in many cases even exceeded what is required by law.
Not only were hundreds of miles surveyed for cultural artifacts by trained and certified archaeological experts in North Dakota, but the pipeline parallels an existing natural gas line, the Northern Border Pipeline. When that project was constructed in the 1980s, archaeological surveys were conducted and the project was approved for construction. Since Dakota Access will cross Lake Oahe along the same corridor, the impact on cultural and traditional sites is significantly mitigated by following existing infrastructure.
In response to the recent announcement from the D.C. Circuit Court on the Standing Rock Sioux Tribe’s request for an emergency injunction, MAIN Coalition spokesman Craig Stevens issued the following statement:
We respect the process and appreciate the Court moving as quickly as possible to hear the facts. Judge Boasberg was very clear in his thoughtful and thorough opinion that the Army Corps of Engineers followed the letter of the law by consulting with 55 tribes at least 389 times, as well as hosting hundreds of other consultations with members of local communities across the pipeline’s route. We continue to believe that if the ultimate decision is based on the facts, science, engineering and the rule of law the Dakota Access Pipeline will be completed and become operational.