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.

Pipeline Worker, Tribal Lawyer Reacts to Appeals Court Decision

A federal appeals court yesterday removed a temporary injunction that halted work on the Dakota Access Pipeline. Construction can now resume in an area between Highway 6 and 1806. Supporters say it’s a step in the right direction while opponents say they’re not backing down from the fight. Ben Smith has the story. Cory Bryson says nearly 400 members of his labor union are working on the Dakota Access Pipeline.
He says they’re excited, and not too surprised at the decision. “It kinda reaffirms with what we’ve known all along that this is a one hundred percent legal project that Dakota Access is pursuing and building, and we’re just excited to be a part of it,” says Bryson, Laborers Local 563

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.

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.

Unions Say DAPL Should Proceed Without Further Delay 

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.”

MAIN Coalition Response to Congressional Letter on DAPL

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.

They were.

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.

MAIN Coalition Statement on the Moore Amendment

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.”