Activists have received veto power over pipeline projects in the US. Suddenly, infrastructure investments face new risk.
For its Dakota Access Pipeline, Energy Transfer Partners LP has permits and a court opinion rejecting a request for temporary injunction against construction of part of the 1,172-mile project between North Dakota's Bakken play and Paducka, Ill. Yet the Departments of Justice, Interior, and the Army have suspended construction of the segment anyway.
Consultation challenged
The challenge comes from the Standing Rock Sioux Tribe, which has culturally important land near the pipeline route at Lake Oahe on the border of North and South Dakota. In a lawsuit, the tribe says the Army Corps of Engineers didn't consult its officials as required by the National Historical Preservation Act.
Judge James E. Boasberg, of the US District Court for the District of Columbia, disagrees. In a 58-page ruling, he painstakingly describes efforts by Corps officials and archaeologists to engage Standing Rock Sioux officials. Telephone calls weren't returned. Meetings at which Corps officials hoped to make presentations were adjourned prematurely.
When the pipeline company made its first formal permit request-to conduct soil-bore testing over a tiny area accessible by existing roads-other tribes and state officials responded. The Standing Rock Sioux historic preservation officer didn't reply until the day the Corps granted the permit. She then demanded more surveys and tribal monitoring of the surveys and construction, expressing concern for a site almost half a mile from the nearest area likely to have been affected by the test. Allegations that the Corps didn't consult adequately on the soil-bore test formed the basis of the tribe's challenge to subsequent permits. According to Boasberg, however, "The Corps has documented dozens of attempts it made to consult with the Standing Rock Sioux from the fall of 2014 through the spring of 2016 on the permitted [Dakota Access Pipeline] activities."
This is not a case of insensitivity to aboriginal culture. The judge says the record shows ETP changed its route through North Dakota alone 140 times to avoid potential cultural resources and opted to transit "well-trodden ground wherever feasible." It also interrupted work to address concerns about the possibility of harm to important features.
This is instead a single interest group, which happens to be an Indian tribe, straining legality to thwart pipeline construction. Naturally, the tribe enjoys support from environmental groups resisting oil and gas logistics everywhere to discourage production, members of which crowded protests against Dakota Access. The court didn't mention this, but behavior of the Standing Rock Sioux historic preservation officer, Waste' Win Young, on Dakota Access fits a pattern that underscores tribal motivations. In 2015, she used the same argument-insufficient consultation-in South Dakota testimony opposing the Keystone XL pipeline.
Justice, Interior, and the Army acted on Sept. 9, the day Boasberg issued his opinion. In a joint statement, the Army said it wouldn't authorize Dakota Access construction adjacent to or under Lake Oahe "until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act or other federal laws." And the agencies said they'd invite Native American tribes to "formal, government-to-government consultations" on adequacy of consultation within existing laws and on the possible need for new legislation. In other words, Standing Rock Sioux officials and their environmentalist friends couldn't block the pipeline by sandbagging consultation under existing statutes, so the administration will consider new statutes.
Stymieing work
ETP calls Dakota Access 60% complete. It has spent $1.6 billion on the project and has judicial validation of its permitting exertions and cultural prudence. Still it must wait while federal departments invent ways to stymie work and keep Americans from benefiting from new abundance of affordable energy.
Yet again in the imperious presidency of Barack Obama, therefore, law yields to demands of an activist minority, taking with it the economic interests of most Americans.