Last week, I lambasted the Obama administration for effectively overturning an Article III court decision regarding the Dakota Access Pipeline. Below is a summary of that post, which serves as necessary background for the latest developments.
The $3.7 billion Dakota Access Pipeline is a partially completed 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.
In early 2016, the Standing Rock Sioux tribe sued the U.S. Army Corps of Engineers, the federal agency responsible for issuing Clean Water Act permits to Dakota Access Services, the company building the Dakota Access Pipeline. The suit alleged that Corps had violated the National Historic Preservation Act by failing to consult with the tribe before permitting the pipeline to cross under Lake Oahe, a dammed section of the Missouri River where the project would come within a half-mile of the tribe’s reservation. In addition to asking the court to issue an order declaring the Army Corps of Engineers had violated federal law, the plaintiffs also asked for an injunction barring construction of the pipeline within federal jurisdiction and beyond.
On 9th September, Judge James Boasberg of the U.S. District Court for the District of Columbia ruled the Army Corps of Engineers had not ignored its duty to consult the Standing Rock Sioux Tribe, as the tribe had asserted. As a practical matter, Judge Boasberg’s ruling should have greenlighted ongoing construction of the pipeline project.
But that’s not what happened.
Instead, the Obama administration issued a remarkable statement only minutes after the ruling, in which it announced that the Army Corps of Engineers would not authorize the pipeline while it reviews its decision allowing the project to be built.
To recap: The tribe had sought to stop construction within the federal government’s jurisdiction, but the court demurred, and then the president granted this same relief through administrative means.
The president’s high handedness raises several alarming questions. Why did the Obama administration fail to tell the court that it was going to order a cessation of pipeline construction, regardless the outcome of the case? Why was it necessary to expend resources arguing a forgone conclusion? Wasn’t the court reduced to the issuing of advisory opinions? Shouldn’t our constitutional law professor president, whose administration is obsessed with “optics,” know what damage can be done by reputational harm to Article III courts?
But it gets worse.
The pipeline is almost all (>97%) on private land, and the federal government’s jurisdiction extends only to the immediate area where the pipeline crosses navigable waterways. The upshot is that Dakota Access Services, the company building the pipeline, was free to continue to build outside federal jurisdiction, irrespective of what the administration wanted.
Before the district court, the tribe had sought an order halting all construction within a twenty mile radius beyond federal jurisdiction. The Obama administration did not have the power to order the company to halt construction on private land, but it did ask for the company to voluntarily stop.
Last week, the tribe appealed to the U.S. Court of Appeals for the District of Columbia to overturn the lower court’s decision to deny an order requiring a work stoppage on the pipeline twenty miles outside of federal jurisdiction.
Seemingly, U.S. government lawyers were in a bit of a bind. Only weeks ago, they’d been arguing before a lower Article III court that the Army Corps of Engineers had followed the letter of the law. But on September 9th, only minutes after the district court ruling, the Obama administration claimed that the Army Corps had messed up after all, and, as a result, the tribe should obtain the relief it had been denied by a lower court. Given this discrepancy, I was eager to read what the federal government told the appeals court regarding the tribe’s motion.
As it turns out, the government tried to have its cake and eat it, too, and the result is nonsense. Here’s what Justice Department argued before the court of appeals:
The Standing Rock Sioux Tribe … moved the district court for a preliminary injunction, arguing that the Corps’s regulatory actions on this pipeline were unlawful and that its construction was likely to cause irreparable harm to historic and cultural sites located all along this 1,168-mile pipeline. … The district court did not abuse its discretion by denying the Tribe’s motion for preliminary injunction. The Tribe has now moved this Court for an injunction pending appeal, and [the tribe’s] motion should be denied for all the reasons set out in the district court’s thorough decision and for the reasons discussed further below.
The above argument is unequivocal. According to the Justice Department (litigating on behalf the U.S. Army Corps of Engineers), the tribe’s “motion should be denied.” Period.
But then the Justice Department’s brief takes a weird turn. According to the government,
That said, in a Joint Statement issued last Friday, September 9, 2016, the [Obama administration] recognized that the Tribe has raised important issues regarding this pipeline and the decision-making process that led to its approval … So while the Corps opposes the Tribe’s current motion and believes that it should be denied, the [government] believe[s] that the pipeline company should implement the relief that the Tribe is seeking voluntarily. Consistent with the Departments’ request, the Corps also would not oppose the entry of an order enjoining all construction activity within 20 miles east or west of Lake Oahe if all parties to this appeal consent to that injunction.
In a nutshell, the government argues that the lower court got it right; “that said,” the administration also disagrees with the lower court, and, and as result, the Justice Department “would not oppose” a reversal.
Remember, the U.S. Corps of Engineers was the defendant in the trial court. That means that the government won. Then, minutes after winning, it decreed that it lost. Now, before the appeals court, the government is saying that it rightfully won in the lower court, but that, in light of the administration’s announcement that it should have lost, the higher court could go either way, and the Justice Department would be fine with the outcome. Ultimately, the appeals court last Friday evening granted the Tribe’s motion for an injunction. Doubtless, the government’s request for a voluntary work stoppage weighed on the panel of judges.
This is kangaroo court justice. Pity Dakota Access Services. I read Judge Boasberg’s decision, and the undisputed record firmly establishes that the company went out of its way to comply with federal statutes. Moreover, the record also demonstrates that the Tribe repeatedly bailed on the consultations that are the very dispute in court. Only minutes after Judge Boasberg vindicated a private party’s right to build an infrastructure project on private land, the President swooped in and effectively overturned the court’s decision. Then, the administration brought an absurdly self-contradictory (and self-serving) argument before the D.C. circuit court, which, for whatever reason, went along for the ride and ordered construction to halt.
In capital-intensive industries like pipeline infrastructure, time is literally money. Moreover, legal uncertainty is money, insofar as it influences access to capital. The upshot is that there is a tangible cost to the Obama administration’s shenanigans. There are also abstract costs to constitutional order. By effectively overturning an Article III court, the Obama administration reduced that court to a mere advisor. This offends Article III independence relative to the presidency.