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.”

 


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.”


Democrats, Republicans United On Dakota Access

North Dakota Senators John Hoeven and Heidi Heitkamp are not letting the latest attempt to derail the completion of the Dakota Access Pipeline go unnoticed.

The Obama administration Wednesday threatened to further delay the critical infrastructure project by ordering the Department of the Army to publish a Notice of Intent to require an Environmental Impact Statement (EIS) in the Federal Register. A move that sidesteps the professionals at the Army Corps of Engineers who have already concluded that the project will result in no significant impacts. In fact, the career civil servants at the Army Corps actually recommended that the easement be approved, but were silenced in the face of politics.

Hoeven, a republican, criticized the move, saying it amounted to changing the rules in the middle of a pre-established process. “The company has complied with all federal and state requirements, and should now be allowed to complete the project,” he said in a statement. “Since the current administration will not issue the final easement, the Trump administration should approve it without delay.”

He added that adjustments to the permitting process could be considered going forward, but should not be applied retroactively to a project that has already received approval. “Pipelines like the Dakota Access Pipeline can be built safely and protect both the tribe and everyone living downstream,” he said. “A new EIS will impose months, and perhaps years, of additional difficulty on the people who live and work in the pipeline area.”

Across the aisle, Democratic Sen. Heidi Heitkamp echoed Hoeven, saying that the administration’s “legally unprecedented” effort would only promote continued division and delay. “Removing decision-making from the U.S. Army Corps District Office and looking at an issue not properly before the Corps does not provide the certainty, or the security North Dakotans need or that the protesters are seeking,” she said.

“Whether you agree with this position or not, President-elect Trump has not minced words about his support for the project, or his intent to take quick action on the issue, and the outgoing Administration knows that this move only stand to further deepen the divides in our state.”

It should not go unnoticed that, even in a state of political polarization, democrats and republicans agree that construction of the Dakota Access Pipeline should be completed without further delay.


Pipeline Supporters Blast Obama, Can’t Wait for Trump

The Midwest Alliance for Infrastructure Now is blasting the Obama Administration for requesting an Environmental Impact Statement on the Dakota Access Pipeline, which could further slow completion of the project.

Environmental activists and pipeline protesters have been pushing a mailing blitz to demand that the Army Corps of Engineers complete the impact study. A recent tweet indicates that Obama will force the issue.

The MAIN Coalition represents labor, business and ag interests, and has promoted the controversial pipeline project. Spokesperson Craig Stevens, in a statement sent to the Pilot-Tribune, said Obama’s action at the end of his presidency is inappropriate.

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Hoeven: Obama Administration Trying to Delay DAPL Again by Changing the Rules

WASHINGTON — Senator John Hoeven today issued the following statement in response to the Obama administration and Assistant Secretary for Civil Works Jo-Ellen Darcy’s decision to require the U.S. Army Corps of Engineers to do an environmental impact statement (EIS) prior to issuing an easement for the Dakota Access Pipeline project:

“The Obama administration is again trying to delay the Dakota Access Pipeline project by changing the rules. The company has complied with all federal and state requirements and should now be allowed to complete the project. Since the current administration will not issue the final easement, the Trump administration should approve it without delay.

 

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MAIN Coalition Statement on Notice of EIS for the Dakota Access Pipeline

MAIN Coalition spokesman Craig Stevens issued the following statement following news that the Obama administration has sent the Federal Register a Notice of Intent to Prepare an Environmental Impact Statement on the Dakota Access Pipeline:

“Despite the policies of the last few years being soundly rejected by the American people, the Obama Administration is using its final hours to allow detainees out of U.S. protection, burrow democratic operatives deep in the federal bureaucracy, and now delay and block lawful infrastructure projects from completion.

“The Coalition certainly believes that the Trump Administration, the courts, and the public will recognize this latest political stunt for what it is – a flailing attempt for relevance. It’s unfortunate that the outgoing administration would try to hamstring the professionals at the Army Corps of Engineers who worked diligently for years to ensure the Dakota Access Pipeline was sited and constructed in the environmentally and culturally sensitive manner.

“We remain optimistic that the incoming Trump Administration will soon issue the final easement for the Dakota Access Pipeline and also demonstrate a willingness to support American infrastructure projects and the American jobs that go along with them.

“Thankfully for the hard-working men and women across the country desperate for a change, hope is finally on the horizon.  Soon we will have a federal government that works for the people – not one that obstructs growth, entrepreneurship, and ingenuity.”

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FOIA Requests Seek Information Dakota Access Pipeline Decision

The Center for Individual Freedom (CFIF) has sent a number of Freedom of Information Act (FOIA) requests seeking information on communications with Jodi Gillette regarding the Dakota Access Pipeline. Gillette, a former advisor to President Obama and the sister of the David Archambault, the chairman of the Standing Rock Sioux Tribe, has played a leading role in the misguided efforts to derail the multibillion dollar pipeline project.

In a statement, Timothy Lee, CFIF’s Senior Vice President of Legal and Public Affairs, expressed concern about the lack of transparency and potential conflicts of interests related to the Army Corps’ decision to indefinitely delay a federal easement for the pipeline.

“There have been a lot of rumors about the backroom dealings that led to the Administration’s decision to not issue the final easement for the Dakota Access Pipeline,” Lee said. “We would hope that the self-purported ‘most transparent Administration in history’ would provide the American people with the background and information that went into this important decision to halt an infrastructure project that had already been approved and was more than 90 percent complete.”

The requests, which were sent to the Departments of Interior, Justice and Energy, as well as the Bureau of Indian Affairs and the Army Corps of Engineers, outline CFIF’s concerns about improper influence over the Obama administration’s actions:

There is growing concern about the relationship between Dave Archambault II’s sister, Jodi Gillette, and the Obama Administration. Mr. Archambault is the chairman of the Standing Rock Sioux Tribe (SRST) and a critic of the project. Ms. Gillette is a former senior advisor to the President and Secretary of the Interior, and is currently a lobbyist on behalf of the Standing Rock Sioux with Sonosky, Chambers, Chambers, Endreson & Perry, LLP. We seek to ensure that Mr. Archambault and Ms. Gillette haven’t wielded improper influence over the Administration’s policies that have resulted in delays in the completion of the Dakota Access Pipeline project.

I request access to and copies of all records since February 1, 2016, related in any way to the Dakota Access Pipeline (DAPL) and Jodi Gillette. This request includes, but is not limited to, all emails, other correspondence, correspondence logs, records of meetings, records of appointments and visitor logs.

CFIF is currently reviewing other potential FOIA requests on the matter.


Burgum Wants DAPL Completed, Rule of Law Restored

Just hours after being sworn into office, North Dakota’s new governor, Doug Burgum, made clear that he wants the Dakota Access Pipeline completed and the rule of law restored. In a video message, Burgum called on the Obama administration to issue the final easement needed to complete the project and provide federal resources to assist local law enforcement.

“For months, the Obama administration has politically stalled a legally permitted project that had already been through an exhaustive review process and has twice been upheld by the federal courts,” Burgum said. “Failure to finish it would send a chilling signal to those in any industry who wish to invest in our state and play by the rules.”

Burgum also addressed the hefty price tag of the months long protests in Morton County, saying that North Dakota taxpayers should not be responsible for the $17 million the state has spent to counter unlawful activities.

The message came a day after now former Gov. Jack Dalrymple defended the multibillion dollar infrastructure project and blasted protesters for ignoring straightforward facts and trampling the legal process.

“It is unacceptable that the facts of the permitting process were not only omitted in much of the discussion among those who disagreed with the pipeline, but were twisted in order to paint the state of North Dakota and federal government as reckless and racist,” Dalrymple wrote in an opinion piece published in the Billings Gazette.


Complete the Dakota Access Pipeline

Anyone surprised by Barack Obama’s last-minute decision to pass on the completion of the Dakota Access Pipeline hasn’t been paying attention. Going to war, even with foes of fossil fuels, has rarely appealed to the man who prefers to lead from behind. Rather than provoke the wrath of environmentalists so late in the game, Mr. Obama is determined to punt and run out the clock. It will fall to Donald Trump to take on those who forced the president to take a knee. Once he takes office, the new president must not duck.

The U.S. Army Corps of Engineers has balked at issuing a final permit enabling builders of the pipeline to bore beneath North Dakota’s Lake Oahe to finish the $3.8 billion project. The 1,134-mile pipeline, connecting the North Dakota’s Bakken oil fields to storage tanks in Illinois, has triggered protests by members of the Standing Rock Sioux who contend the pipeline would despoil their ancestral homeland and threaten their water supply. Their concerns appear to be exaggerated; the pipeline would pass no closer than to a half-mile of tribal property. Their home “where the buffalo roam” would remain untouched.

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USA Today Editorial Supports Completion of Dakota Access

The USA Today Editorial Board called for the completion of the Dakota Access Pipeline in a piece published on December 5th.

According to the board’s piece, despite attempts to block the project, oil produced in North Dakota will not be kept in the ground.

“The issue of where to route pipelines is always going to be a sticking point. Native tribes are not the only ones who would prefer to not have them in or near their backyards. But pipelines fill a vital need for the economy and for America’s energy security, and therefore need to be built.

As for combating climate change, the ultimate goal of many environmental groups, taking on individual pipelines is not the answer. The answer is to impose costs on carbon emissions so polluters can’t keep using the atmosphere as a free dumping ground for greenhouse gases. That way, markets can figure out the best way to adapt.

Pipeline fights can make for a great spectacle. But, no matter which side wins, they will have little impact on the environment beyond their immediate environs.”