Presidential Miscues On The Dakota Access Pipeline

dakota-pipeline-waterhoseRight now a major energy and environmental fiasco is playing out over the completion of the Dakota Access Pipeline (DAPL). This 1172-mile pipeline, when completed, will move 470,000 barrels of oil per day from the production fields in the Bakken and Three Forks regions of North Dakota to refineries and terminals located in Patoka, Ill.

Originally, the case was a legal dispute which pitted the company building the pipeline and the Army Corps of Engineers against the Standing Rock Sioux Tribe (SRST) over the narrow, but important, legal question of whether the Army Corps and Dakota Access had complied with the provisions of the National Historic Preservation Act of 1966, which required them to consult with the tribes before a permit could be issued.

On Sept. 9, Judge James E. Boasberg, an Obama appointee in the District of Columbia, wrote an exhaustive opinion which essentially said that both the Army Corps and Dakota Access had participated fully in the process, which SRST sought to ignore or flout every inch of the way.

As a legal matter, the case should have been over once Dakota Access had obtained all the permits to allow it to complete the $3.7-billion project now more than 70% complete.

But, unfortunately, the legal disputes has quickly transformed into a political circus that goes far beyond its initial boundaries. Two major interconnected issues have surfaced.

The first is that the SRST and its allies have sought to turn the entire dispute into a re-examination of the entire history of the troubled relations between the United States government and the Native American tribes, on the perverse logic that any misdeeds that took place over a century ago justify a departure from the applicable legal rules governing the case, all of which were put in place to see that those tribal claims were honored.

At this point, large groups of protesters have trespassed on public and private lands in their effort to block, often by force and violence, the completion of the pipeline, so that tensions have reached the boiling point, with over 411 arrests in the past three months.

The second issue is that the permit denial is a proxy fight over the systematic efforts of environmental activists to treat, as does Bill McKibben, a rerun over the larger question of whether any new pipelines should be built given their insistence that all fossil fuels should be left in the ground. McKibben’s apocalyptic view is that the pipeline dispute should be used to galvanize opposition to all fossil fuel use and to the banks and other businesses that help fund its operation.

However, ludicrous McKibben’s position, policy disputes over fossil fuel use is always fair game for legislative re-examination, but only outside the confines of the DAPL. But what is most striking about the dispute is the lengths to which first the Department of Justice and then President Obama have gone to undermine politically the outcome of the DAPL litigation if the government had prevailed.

Thus the same day that Judge Boasberg issued his opinion, the DOJ issued a conclusory statement blocking construction on the thousand-foot strip of land that had been the object of the litigation. It coupled that temporary ban with a request that Dakota Access voluntarily stop construction 20 miles on either side of the strip be stopped as well, without identifying what issues needed to be addressed or any sort of timeline for resolution.

This past week President Obama added further fuel to the fire by saying why he thought some additional time was needed before work on the pipeline could be completed. His interview was, alas, wholly devoid of any substantive content, and showed a deep disrespect for the rule of law. His opening sally was the government should “be properly attentive to the traditions of the first Americans.”

But at no point did he refer to the elaborate set of deliberative procedures that were intended to do that, but in which the SRST subverted. These extensive procedures involved not only the Army Corp, but also the public utility commissions of North and South Dakota, Iowa and Illinois. Obama then compounded his initial error by failing to understand the enormous dangers of letting any group be in a position to make the pipeline useless by severing it at a single point.

Thereafter he tossed out the suggestion that the Army Corps could find ways to “reroute” the pipeline. But his remark ignored the exhaustive work done to choose the present route. The alternative northern route through Bismarck was longer; it went through more difficult terrain; crossed more bodies of water and more tribal lands, and thus posed greater environmental and safety risks, compared to the route chosen which minimizes environmental and tribal risks by following closely on the path of an existing pipeline and transmission line.

Nor did Obama realize that his proposal could require ripping out completed portions of DAPL. Nor did the President acknowledge that exhaustive geological surveys had failed to turn up a single tribal artifact that had been endangered by DAPL. And he failed to recognize any construction delay in DAPL would result in the transmission of oil by far more dangerous means, including truck and rail and older pipelines that are not as technologically advanced as DAPL.

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