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.