The Real Victim in the Dakota Access Pipeline Controversy Is the Company behind the Project

The real victim in the controversy over the Dakota Access Pipeline is Dakota Access Services, the company behind the $3.7 billion project that would move almost 500,000 barrels of oil daily from the Bakken oil fields in North Dakota to a refining hub in Illinois. The operators of the pipeline are being jerked around by the government, environmentalists, and the Standing Rock Sioux, all of whom are acting in varying degrees of bad faith.

President Obama Yanked the Rug out from under Dakota Access Partners

The pipeline route is 99% on private land. As such, the federal government’s role is quite limited. In fact, the U.S. government’s jurisdiction extends only to the immediate area where the pipeline crosses navigable waterways.

After jumping through all the appropriate hoops, the U.S. Army Corps of Engineers permitted construction of the pipeline under a dammed portion of the Missouri River a half mile north of the Standing Rock Sioux reservation. Thus, a property right was conferred to the company. 

Then, the Standing Rock Sioux challenged the permit in court. As the defendant in that proceeding, the Justice Department argued that the U.S. Army Corps of Engineers had acted legally in conferring a permit to the company. In September, the government won a major component of the case, when a federal district court judge refused to halt pipeline construction.

Up through winning in court last September, the government’s conduct was unobjectionable. That is, the U.S. Army Corps of Engineers followed all required procedures in issuing the permit, and the Justice Department successfully defended the Army Corps actions in court. As a result, the company could proceed with construction of the pipeline.

But then the Obama administration, as it is wont to do, flouted the law. Only minutes after the district court announced that construction could proceed, the Department of Justice, Department of the Army, and Department of the Interior issued a joint statement announcing that the federal agencies will halt any additional permitting and reconsider its past permits of the project. Simply put, President Obama unilaterally spiked the project.

As I explained here, this is a gross injustice. Time is money for capital-intensive infrastructure projects like the Dakota Access Pipeline. The company behind the project went to great lengths to comply with all applicable federal statutes so that it could achieve authorization to build on the 1% of the pipeline subject to federal jurisdiction. The fruits of these efforts were a permit, or property right. The company’s right to build were subsequently (albeit preliminarily) vindicated in court. And then the President simply overturned the court’s order, and now the administration is stalling. Each day of construction that is lost costs the company money.

It would be terribly naïve to think that President Obama acted out of genuine concern over historical relations between the federal government and Native Americans. If that were so, then the Obama administration would have heeded the pleas of the Navajo Nation to spare coal-fired power plants on the Navajo reservation from the Environmental Protection Agency’s all-pain-no-gain Regional Haze rules and attendant job losses. Rather, the real reason Obama unilaterally overturned a court order was to appease the green special interests that helped him get elected and who are cynically leveraging the Dakota Access Pipeline affair to pursue their narrow interests.

In sum, it’s outrageous that a company, acting in good faith to comply with all the relevant rules, can be jerked around like this by the federal government. Talk about regulatory uncertainty!

The Cynicism of the Greens

Given that the legal issue at play is whether the U.S. Army Corps sufficiently consulted with the Standing Rock Sioux regarding historical artifacts and other issues of cultural significance, it is perhaps surprising that the tribe is being represented by EarthJustice. You might be asking yourself: Why is an environmental special interest litigating a statute that deals with preserving Native American history?

The answer, of course, is that the greens will use any means necessary to achieve their goal of “keeping it in the ground.” Their “solidarity” with the Standing Rock Sioux is a sham pretense for their real purpose: misusing the law to advance their climate agenda.

The Standing Rock Sioux Refused To Cooperate

Yesterday, CNN reported that not all Standing Rock Sioux oppose the pipeline (emphasis added):

[Robert Fool Bear Sr., district chairman of Cannon Ball] has had it with the protesters. He says that more than two years ago, when members of the Standing Rock Sioux Tribe could have attended hearings to make their concerns known, they didn't care. Now, suddenly, the crowds are out of control, and he fears it’s just a matter of time before someone gets seriously hurt.

Fool Bear, Sr. has it exactly right.

As I noted above, the central legal issue is whether the U.S. Army Corps of Engineers fulfilled its responsibility under the National Historic Preservation Act to consult with tribes “that attach religious or cultural significance to property” affected by the Army Corps’s permitting decisions. In line with Robert Fool Bear Sr.’s comments above, the record clearly demonstrates that the Army Corps’s good faith efforts at consultation were stonewalled by the Standing Rock Sioux.

On September 30, 2014, for example, the Corps sent centerline files of the planned pipeline route to the Standing Rock Sioux for review. There was no response.

On October 2, 2014, the Standing Sioux Rock backed out of the first scheduled meeting with the Corps on the project.

The Corps rescheduled the above meeting for November 6, 2014. Again, tribe officials were a no show.

On December 19, 2014, the Corps again reached out to the Standing Rock Sioux to schedule a meeting. Again, there was no response.

It wasn’t just the Army Corps of Engineers with whom the tribe refused to play ball. According to reporting by GreenWire, the Standing Sioux were invited to three public hearings held by state regulators in North Dakota. The tribe was a no-show at each one.

The fact of the matter is that the Standing Rock Sioux refused to cooperate with the federal government for two years, despite the best efforts of the U.S. Army Corps of Engineers. The tribe only got involved to any serious extent at the tail end of the process, at which point they demanded that the Army Corps of Engineers review possible impact of the whole pipeline. But this is impossible, because the federal government only has jurisdiction over 1% of the pipeline!

Therefore, Robert Fool Bear Sr. is absolutely right. “More than two years ago, when members of the Standing Rock Sioux Tribe could have attended hearings to make their concerns known, they didn’t care.”

Despite the tribe’s refusal to act in good faith, both the company and the U.S. Army Corps of Engineers went to great lengths to accommodate the tribe’s interests. Indeed, the company labored to devise a route to account for and avoid sites that had been identified as potentially eligible for or listed on the National Register of Historic Places. Moreover, the company bought rights to a 400 foot corridor along preliminary route to conduct cultural surveys by professionally licensed archeologists, who inventoried, delineated, & assessed historic sites. Thus, the company identified 91 stone features of religious significance to Native Americans; the pipeline was rerouted around all of them. Ultimately, the company surveyed twice as many miles in North Dakota as the 357 miles that are planned for the pipeline, and the route was modified more than 140 times in the process. It is also worth noting that where the pipeline crosses the Missouri—which is the key area in this whole imbroglio—it is 100% adjacent to an existing pipeline for natural gas.