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.
More than 99% of the pipeline traverses private land, which means that the project is subject to very little federal permitting. However, the project does require Clean Water Act permits for every river or lake that it crosses.
In early 2016, the Standing Rock Sioux tribe sued the U.S. Army Corps of Engineers, the federal agency responsible for issuing the aforementioned Clean Water Act permits. 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 cross within a half-mile of the tribe’s reservation.
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 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. As a justification for these actions, the statement referenced how “thousands” of protestors had voiced their opposition to the project.
Friday’s announcement might be the worst of Obama’s executive overreaches. Only minutes after a private party vindicated its right to build an infrastructure project on private land, the President swooped in and effectively overturned the court’s decision. We already knew that he thinks the President can write laws (see, e.g., the “Clean Power” Plan). Now we learn that Obama thinks the President is empowered to reverse judicial rulings with which he disagrees.