Does law matter in the US, or does it not? That question, not the incoherent wishes of protestors trying to block completion of the Dakota Access Pipeline, deserves urgent attention.
The US Army Corps of Engineers turned political on Nov. 14 when it delayed a fanciful decision about a water crossing in North Dakota disputed after the fact. In the process, it jettisoned credibility. Now, any project developer encountering federal jurisdictions must wonder what possession of a Corps permit means.
'Additional discussion'
"The Army has determined that additional discussion and analysis are warranted in light of the history of the Great Sioux Nation's dispossession of lands, the importance of Lake Oahe to the tribe, our government-to-government relationship, and the statute governing easements through government property," the Corps said in a statement explaining its capitulation.
Anyone inclined to believe a word of this should read the decision issued Sept. 9 by Judge James E. Boasberg, of the US District Court for the District of Columbia, rejecting the request by the Standing Rock Sioux tribe for an injunction against Dakota Access construction. The 58-page decision painstakingly describes exertions by Dakota Access LLC to avoid cultural conflicts and by the Corps to engage a tribe that apparently didn't want to be bothered when engagement could have influenced events.
Standing Rock Sioux officials prefer raucous protest, in league with environmental protestors, over cooperation within established legal processes. And, once again, the administration of President Barack Obama has sided with obstructionism to the detriment of law.
Tribal activists and their partners are marching and camping in North Dakota to block a 1,170-mile crude oil pipeline that's nearly complete. The environmentalists, of course, want to harpoon all pipeline projects in order to discourage development of oil and gas resources. Religious sensitivities of the tribe thus entangle themselves with the usual, ridiculous demands to substitute renewable energy for the affordable kind. The only consistent message is that the protesters don't want Dakota Access, a unit of Energy Transfer Partners LP, to finish the pipeline.
Standing Rock Sioux officials might have argued their case when officials of the company and the Corps, beginning in 2014, solicited their views about work for which Dakota Access needed permits. As Boasberg's opinion makes clear, they were not interested. They mostly dodged meeting requests and invitations to site visits. For a permit that became central to their request for an injunction, they expressed concerns and made demands in a letter dated the day the Corps permitted the work, which Corps officials didn't receive until 2 weeks later. Then they claimed not to have been consulted. Other Native American tribes, as well as the North Dakota government, were consulted and promptly responded.
Standing Rock Sioux officials can't attribute this obvious sandbagging to doubt about attention to their worries. Dakota Access routed and rerouted the pipeline to avoid cultural conflicts. Indeed, the water crossing now so supposedly threatening runs adjacent to and no more than 300 ft from an existing natural gas line. The tribe has no reason to think the company would be unresponsive. It just doesn't want the pipeline to be completed.
US law doesn't give the tribe veto power over an important project that doesn't transit its land. US law allows the tribe to express concerns about the project and to deliberate remedies. The tribe chose not to exercise its rights before remedies became impracticable. Now it demands that a $3.7 billion investment die aborning-an outcome that would demonstrate unmerited influence and advance energy goals of the political fringe.
Repairing the wreckage
Dakota Access has the permits it needs. The Corps granted them. Yet now the Corps professes to require "additional discussion and analysis." Submitting to activist pressure in this manner subdues law, discredits government, and loads infrastructure projects with new risk.
Administration supporters will call this a proud legacy. Others will see it more accurately as legal wreckage left for others to repair.