On Standing Rock, Politics Trumped Facts And Law

Last month, the Army Corps of Engineers, pursuant to political pressure, reversed its prior decision and denied the final permit needed to complete construction of the Dakota Access Pipeline.

The pretext: that the pipeline company, after years of planning and reliance on the U.S. government’s decisions and representations to the courts, should explore alternate routes. The announcement puts politics over the rule of law. When Donald Trump enters the White House, he should quickly reverse this political decision and allow construction to resume.

The pipeline, which passes near the Standing Rock Sioux Reservation in North Dakota, provoked sharp dissent from Indian leaders worried about its potential effect on water supplies and sacred Indian land.

The 1,170-mile project is designed to carry about 500,000 barrels of crude oil a day from North Dakota to Illinois. Dakota Access construction has created 12,000 jobs and will generate a total of $156 million in sales and income taxes in Iowa, Illinois and North and South Dakota.

More than 99% of the path of the pipeline is on private land, which does not require federal approval. The Corps reviewed the remaining path, as required under the Clean Water Act, the Rivers and Harbors Act, the National Historic Preservation Act and the National Environmental Policy Act.

This past July, after years of extensive review, the Corps concluded that the pipeline would have no significant adverse impact on the environment. Numerous state agencies reached similar conclusions. Based on its finding, the Corps issued all approvals necessary for construction.
Shortly thereafter, the Standing Rock Sioux Tribe sued in federal district court in Washington, D.C. to stop construction and to reverse the Corps’ decision. The Tribe’s lawsuit spawned protests, sometimes violent, on federal land near the construction site.

The Department of Justice, representing the Corps in court, denied the Tribe’s claims and argued that construction should be allowed to go forward. The Corps’ Justice Department attorneys repeatedly assured the courts that the Corps had fully complied with NEPA’s requirements and other federal laws, including the National Historic Preservation Act.

On September 9, 2016, the District Court, in a detailed opinion that carefully reviewed each of the Tribe’s claims, denied the Tribe’s request to stop construction. (The D.C. Circuit Court of Appeals subsequently upheld that ruling).

Construction should have resumed shortly thereafter. Pipeline workers should have been allowed to enter the federal lands of the Missouri River under which the pipeline would run.
Yet the Departments of Justice, the Army and Interior then issued an unusual, joint press release stating: “the Army will not authorize constructing” the pipeline until it can determine whether it needs to review its previous decision under NEPA. The press release cited no basis for its order and publicly undercut the Corps and its Justice Department lawyers who had been repeatedly defending the Corps’ determinations on their merits.

It’s no wonder, Richard Epstein, one of the nation’s top legal scholars, described the Administration’s attempt to reverse the Corps’ decision after defending it on the merits as “completely unprecedented in the annals of American environmental litigation.”

Ordering the Corps to abandon its well-founded positions for the sake of political expediency is wrong. Interested private parties should be able to rely on the Corps’ merits-based decision defended by the Justice Department and confirmed by the courts. Contrary to fundamental rule of law precepts, the firm’s work should not depend on arbitrary political decisions to change the rules after the fact.

President Trump should waste no time in reversing this political decision, restoring the government’s credibility and upholding the rule of law.

Nothing contained in this blog is to be construed as necessarily reflecting the views of the Pacific Research Institute or as an attempt to thwart or aid the passage of any legislation.

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