Protests against the Dakota Access Pipeline divert attention from serious questions about the rule of law and politicization of federal agencies. Images of Native Americans and environmentalists camping in snow play better than constitutional problems do on television.
Energy Transfer Partners LP (ETP) had excellent reason to believe the Army Corps of Engineers would grant the easement it needed to lay pipe beneath Lake Oahe in North Dakota. With jurisdiction over about 37 miles of the 1,170-mile pipeline route, the Corps already had granted more than 200 permits, easements, and other permissions, most related to water. Indeed, one of the easements, required by the Rivers and Harbors Act of 1899, covers the Lake Oahe crossing. Why would the Corps not also grant an easement for the same work under the Mineral Leasing Act?
Nearly complete
ETP has nearly completed the $3.8-billion crude oil pipeline connecting Bakken and Three Forks production in North Dakota with the hub at Patoka, Ill. But the Standing Rock Sioux Tribe opposes the project, which would cross narrow Lake Oahe half a mile from its reservation. When the tribe's legal challenge faltered, representatives began protesting near the site of the contested water crossing. They soon were joined by fanatics hoping to block pipeline construction as a way keep oil and natural gas in the ground.
Inevitably, television coverage of these events shapes itself into a David-and-Goliath tale, with a tiny Native American group challenging the corporate giant. The real story differs.
The tribe argues it hasn't been consulted to the extent required by law. In a Sept. 9 denial of its request for injunctive relief, however, a federal district court judge documented many unsuccessful attempts by officials of the Army Corps of Engineers to meet with tribal representatives. If consultation was insufficient, the reason is the tribe evaded it.
Also clear in the record is ETP's concern for tribal sensitivities. The company studied existing cultural surveys, commissioned surveys of its own, changed the pipeline route 141 times in North Dakota alone, and followed well-traveled corridors to avoid disruption.
The project has been studied, deliberated by tribes other than the Standing Rock Sioux, adjusted, and-with a crucial exception-permitted. It's also mostly built. Apparently, none of that matters to the federal government. Immediately after denial of the tribe's injunction request on Sept. 9, the Departments of the Army, Justice, and the Interior blocked pipeline construction. Jo-Ellen Darcy, assistant secretary of the Army for civil works, initially sought time for discussions with Standing Rock Sioux officials. ETP sued to try to avoid further delay. On Dec. 5, Darcy rejected the easement permit outright.
This is the same Department of the Army whose Corps of Engineers already has granted an easement for the same water crossing under a different statute. Alas, the question why the Corps would grant one easement and not the other has an easy answer: Protests changed the politics. And in the administration of President Barack Obama, charmed as ever by activism, politics matters more than law.
The precedent is dreadful. ETP acted responsibly, followed the law, won approvals, and now faces months of costly delays. Darcy wants a full environmental impact statement, which will require time to prepare and offer pipeline opponents a rich menu of lawsuit bait. The chilling effect of this capriciousness on infrastructure construction already has been discussed here (OGJ, Nov. 21, 2016, p. 16).
Using the Army
What also needs more attention than it receives is use of the Army to pursue a political agenda designed for and by environmental extremists. High-level reversal of Corps support evident in a chain of decisions represents brazenly political support of misguided efforts to stymie oil development by blocking pipelines.
Earlier in the Obama presidency, alarms properly sounded when the Internal Revenue Service was found to be targeting conservative groups for investigation. They should be louder when politics annexes the military. Even television might sense danger in that.