Court Rejects Bid to Halt Construction of the Dakota Access Pipeline

A federal court denied Tuesday the latest attempt by opponents to stop construction of the Dakota Access Pipeline, which is now over 99 percent built and expected to be operational very soon.

In a 38-page opinion, U.S. District Court Judge James Boasberg offered a thorough rebuke of the tribe’s claim that the presence mere presence of the pipeline would desecrate the waters of Lake Oahe. Boasberg said the Cheyenne River Sioux Tribe’s Religious Freedom Restoration Act was unlikely to succeed because the tribe had not demonstrated a “significant burden” resulting from the easement granted by the U.S. Army Corps of Engineers.

Boasberg also noted that the Lake Oahe crossing was disclosed by the Army Corps of Engineers in October 2014, but it wasn’t until after the project was fully permitted almost fully built that the tribes raised religious concerns. In fact, the failure to raise this claim sooner in it of itself barred the issuance of a preliminary injunction according to the ruling.

“For more than two years after becoming aware of DAPL’s proposed route, construction, and operation, then, Cheyenne River remained silent as to the Black Snake prophecy and its concerns about the presence of oil in the pipeline under Lake Oahe absent any issue of rupture, as well as about the possible applicability of RFRA. … The Court, accordingly, concludes that Defendants have shown that the Tribe inexcusably delayed in voicing its RFRA objection.”

Furthermore, Boasberg said further delay of the project based on the eleventh hour argument would “impose significant costs on a private third party” and underscored that the company did make route adjustments to accommodate tribal concerns during the permitting process.

“Indeed, Defendants previously modified the pipeline workspace and route more than a hundred times in response to cultural surveys and Tribes’ concerns regarding historic and cultural resources. The Corps also imposed additional construction conditions on DAPL in response to tribal positions regarding environmental safety.”

MAIN Coalition spokesperson Craig Stevens applauded the ruling and the company’s commitment to the protection of cultural and historical resources.

“Judge Boasberg’s thoughtful decision further demonstrates that both the Army Corps of Engineers and Dakota Access have fully complied with all established laws and regulations governing the permitting, installation, and operation of the Dakota Access Pipeline,” said Stevens in a statement. “Both Dakota Access and its parent company, Energy Transfer Partners, have continued to show a strong desire to accommodate landowner concerns and respect for culturally sensitive areas.”

All parties will be back in court next month to address two motions for summary judgement filed by the Cheyenne River Sioux Tribe and the Standing Rock Sioux Tribe. However, by then, it is more than likely that construction will have been completed and the pipeline put into operation.

Kauzlarich: Invest in American Energy, Enforce the Rule Of Law

A new op-ed by former U.S. Ambassador Richard Kauzlarich was published today in The Hill. Kauzlarich discussed how last week’s House Energy and Commerce hearing emphasizes the need to complete the Dakota Access Pipeline and invest in America’s infrastructure.

Kauzlarich says, “Regulatory oversight of such projects is important, and the United States maintains a strong tradition of enforcing the rule of law. We also have a tradition of ensuring that the voices of local communities affected by such projects are heard. Government at all levels has a responsibility to ensure the rule of law is followed to the letter of the law.”

Throughout the DAPL permitting process the concerns of local communities were addressed by both the state and federal governments and upon the issuance of permits by both entities, the permits carry the force of law and should remain enforced as such. According to Kauzlarich, “Private investment is critical for the production and distribution of U.S. energy resources. The integrity our legal and regulatory structure is critical to ensuring this investment.”

Without the government’s willingness to enforce the rule of law – America’s energy revolution could come to a halt. Thankfully, with construction proceeding on DAPL following action by the Trump Administration to adhere to Corps of Engineers’ recommendation for completion, the rule of law has been established and will ensure America sees this  important project through to completion.

North Dakota Governor Issues Emergency Evacuation Order for Protest Camps

According to a report from the Dickinson Press, North Dakota Gov. Doug Burgum ordered the mandatory evacuation of Dakota Access Pipeline protesters stressing the dangers of spring flooding and the need to avoid environmental damage. The report followed an official release from the Governor’s Office, and a release from Sen. John Hoeven which stated that the U.S. Army Corps of Engineers will have a crew on site by the end of the week to assist in cleaning up the area.

The order requires the evacuation of everyone currently occupying the Corps of Engineers land along the Cannonball Rivers in Morton and Sioux Counties citing the threat from human and inorganic waste left behind by protesters who have gathered at the site for over half a year.

The waste “pose[s] a significant and increasing environmental threat to the waters of Missouri River if cleanup and removal efforts are not quickly accelerated and completed before flooding begins.”

The order follows an earlier statement from the Governor’s office which said “It is paramount for public safety, and to prevent an environmental disaster, that the camps be cleared prior to a potential spring flood. Once the floodwaters recede, the land will need to be cleaned and eventually restored to pre-protest conditions.”

Energy Subcommittee Hears Testimony from Pipeline Stakeholders and Dakota Access

Today, the Energy Subcommittee of the House Energy and Commerce Committee held a hearing in Washington, DC to gather information from a number of stakeholders on various energy infrastructure projects. The hearing was entitled “Modernizing Energy and Electricity Delivery Systems: Challenges and Opportunities to Promote Infrastructure Improvement and Expansion.” The committee heard from various stakeholders with vested interest in energy infrastructure projects, including members of the labor and construction community, Native American Community, electrical grid builders and operators, and pipeline builders and operators.

Pipeline projects across America were a key focus of testimony from many of the individuals on the panel and during many of the questions from the Committee. Notably, many of the half-truths, misrepresentation, and partisan politics that have pervaded pipeline projects over the past six months were addressed.

During the hearing Joey Mahmoud, Project Manager for the Dakota Access Pipeline spoke on the impact of these half-truths and misrepresentations on the Dakota Access Pipeline specifically.

Mr. Mahmoud noted that the letter of the law was followed closely throughout the approval process, including extensive Native American consultations by both the company constructing Dakota Access and the U.S. Army Corps of Engineers. Despite following a clearly delineated legal process, a political decision was made to stall the final easement necessary to complete construction at the 11th hour in spite of the efforts of four state regulators, the work of the U.S. Army Corps of Engineers in conjunction with other federal agencies.

Mr. Mahmoud’s testimony concluded with an emphasis on the importance of the role of the federal government to enforce the rule of law:

“Mr. Chairman, we came to realize that even a company as large as Energy Transfer is helpless in the face of a government which will neither obey nor enforce the law. We came to realize that playing by the rules can count for little. And we came to realize that good faith efforts to reach accommodation with the many different stakeholders can be a fool’s errand when political motivation overrides the rule of law.”

Now that the government has given final easement, construction continues toward the completion of Dakota Access.

Statement Regarding Court’s Refusal to Block Work on the Dakota Access Pipeline

MAIN Coalition spokesman Craig Stevens issued the following statement in response to U.S. District Court Judge James Boasberg’s decision to deny a request to issue a temporary restraining order filed on behalf of Native American tribes that would have stopped construction of the Dakota Access Pipeline.

“We are pleased that Judge Boasberg continues his thoughtful and judicious approach towards the Dakota Access pipeline. The company and the government have worked tirelessly for more than two years to ensure all applicable laws and regulations were obeyed and the pipeline’s path followed the most culturally and environmentally sensitive course possible. It is frustrating, however, that the opposition continues to throw lawsuits against the wall in a flailing attempt to scuttle the project. Even while the proceeding was underway this afternoon, another suit hit the docket. There is no doubt that parties deserve their day in court, but how many days are warranted and at what point does this activity become unmasked for what it is: an attack on America’s energy development and the jobs that go along with it.”

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What Others Are Saying on the USACE’s Decision to Grant Final Dakota Access Easement

In addition to MAIN Coalition spokesman Craig Stevens’ statement, the following MAIN Coalition members also issued statements following the release of the final easement necessary to finish construction of the Dakota Access Pipeline by the U.S. Army Corps of Engineers:

Ed Wiederstein, Chairman, Midwest Alliance for Infrastructure Now (MAIN) Coalition said, “The MAIN Coalition is pleased that the U.S. Army Corps of Engineers has decided to move forward with the final easement – thus ensuring the completion of the long awaited Dakota Access Pipeline. We thank the U.S. Army Corps of Engineers for their hard work and deliberation on this project which allowed for this important decision to be reached, and we thank the Trump Administration for moving this project forward.”

Bill Gerhard, President,  Iowa State Building and Construction Trades Council said, “The decision to grant the final easement for the Dakota Access Pipeline following an extensive and thorough review has been eagerly anticipated by thousands of hardworking men and women. We applaud the U.S. Army Corps of Engineers for their decision to issue the final easement.”

Andy Peterson, President, North Dakota Chamber of Commerce stated, “With the issuance of the final easement at Lake Oahe, our state can put the long saga of Dakota Access’ construction behind them and look forward to operation of this important pipeline project. Our state relies on a stable and lawful regulatory climate to ensure business transactions can occur unencumbered by political interference – the Corps’ engineering decision to grant this easement is a positive step forward for both the project and North Dakota.”

 Ron Ness, President, North Dakota Petroleum Council said, “The U.S. Army Corps of Engineers’ decision to grant the final easement to the Dakota Access Pipeline is a welcome decision for both the oil and gas industry, as well as for businesses and individuals across North Dakota. Our state has waited a long time for this final easement, even following approvals by our own Public Service Commission, and endured months of divisive and disruptive protests. We thank the Corps for their expedient decision following a directive from the Trump Administration to ensure the lawful regulatory review process is carried through to completion.”

Mike Ralston, President of the Iowa Association of Business and Industry stated, “The Iowa Association of Business and Industry thanks the U.S. Army Corps of Engineers for their decision to move forward with the Dakota Access Pipeline. The directive issued by the Trump Administration only a few short weeks ago sought a lawful conclusion to the long process of pipeline approval and we are thankful that we will see the completion of the project soon.”

Dawna Leitzke, Executive Director, South Dakota Petroleum and Propane Marketers Association said,  “The South Dakota Petroleum and Propane Marketers Association applauds the decision by the U.S. Army Corps of Engineers to issue the final easement for the Dakota Access Pipeline. South Dakotans look forward to the completion of this important infrastructure project and a step toward a future of American energy independence.”

MAIN Coalition Statement Regarding Issuance of Final Easement for the Dakota Access Pipeline

MAIN Coalition spokesman Craig Stevens issued the following statement following news that the U.S. Army Corps of Engineers has granted the final easement needed to complete the Dakota Access pipeline:

“We are pleased that the Army Corps of Engineers has issued the final easement for work abutting and beneath Lake Oahe. The Corps has worked diligently for more than two years to ensure both the letter and spirit of the regulatory process was followed. President Trump’s expeditious action upon taking office to support energy infrastructure projects sends a clear signal to the world that the U.S. is open for business and that individuals and companies that play by the rules will not be unduly hindered by an overly-burdensome federal government. We remain hopeful that construction will be completed in a safe and timely manner and we thank the law enforcement officers at the site who work tirelessly to ensure the peace.”

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Statement Regarding Comments of Fmr. Interior Secretary Sally Jewell

Former Obama Administration Secretary of the Interior Sally Jewell released a statement earlier today on Twitter about the U.S. Army Corps of Engineers’ decision to issue the final easement for construction on the Dakota Access Pipeline. In response, MAIN Coalition spokesman Craig Stevens issued the following statement:

“Earlier today I was stunned by Ms. Jewell’s spectacular attempt to rewrite history.  Her statement is so riddled with misinformation, it’s a disservice to the Americans who, for nearly four years, paid her salary.  It’s one thing to disagree with President Trump’s policies, it is quite another to misrepresent the actual facts of the situation.

Unlike Ms. Jewell’s claim, there is absolutely no evidence – actual or anecdotal – that the Army Corps of Engineers believed that a broader review was warranted.  In fact, the comprehensive, fact-based, 9-page memo from December 3 that Army Corps Col. John Henderson wrote to his superiors concluded with “[the Corps] intends to execute and issue the easement to Dakota Access”.  That was consistent with his memo from July 25.

This is not ambiguous.

However, less than 24 hours after Col. Henderson sent the memo up his chain of command, the Assistant Secretary of the Army Jo-Ellen Darcy – an Obama Administration political appointee – issued her own memo in which she says the Army’s call for more information was her decision and she reaffirms that the Corps did everything in accordance with the letter and spirit of the law.

“I want to be clear that this decision does not alter the Army’s position that the Corps’ prior reviews and actions have comported with legal requirements.  Rather, my decision….” (Paragraph 15).

Furthermore, there is no reasonable argument that the Corps’ did not attempt to fully engage with Native tribes.  Throughout the nearly 1,000 days the Dakota Access Pipeline has been under consideration, the Corps engaged with 55 Native tribes at least 389 times.  Judge Boasberg himself articulated  in his opinion rejecting the tribe’s request for an injunction to stop the work at Lake Oahe, that the Corps “exceeded” its obligations.  And, in addition to the Army Corps’ thousand page environmental assessment, each of the four states through which the pipeline travels independently reviewed and approved the pipeline’s path.

And finally, Ms. Jewell continues the fiction that the pipeline was initially slated to go near Bismarck until met with resistance.  In his own words, Bismarck Mayor Mike Seminary disputed that claim saying, “Bismarck has never been involved in that discussion. Not one policy maker, not one department head, not one city employee has ever been involved in a discussion with regards to a route north of Bismarck …. So move on from that subject. You are wrong and you are creating issues.”

Throughout this entire course of action I, and the Coalition, have strived to be forthright and honest about the facts; unfortunately, those who oppose energy development have often resorted to creating their own reality.

For Ms. Jewell to impugn the integrity of the Corps and the men and women who serve our nation is simply un-American.  As a citizen, she is certainly entitled to express her own opinion; but as a former servant of the public’s trust it should be beneath her to make up her own facts.”

 

Statement Regarding Army Corps Intent to Issue Final DAPL Easement

MAIN Coalition spokesman Craig Stevens issued the following statement in response to the notice that the Army Corps of Engineers intends to issue the final easement for the Dakota Access pipeline.

“We’re pleased that the Trump Administration has followed the counsel of the Army Corps of Engineers and the letter of law by indicating its intention to issue the final easement for the Dakota Access Pipeline. This action is proof-positive of President Trump’s commitment to supporting domestic energy development, including midstream infrastructure projects. Today’s action sends a strong positive signal to those individuals and companies seeking to invest in the U.S. and will help strengthen our economy and create jobs.”

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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.”