Earlier this year, GAIN strategic advisor and former Army Corps Colonel Tom Magness wrote a piece in Bloomberg Law on the importance – and necessity – of regulatory certainty in the face of frivolous lawsuits for infrastructure development to flourish. The piece was written with a focus on the Dakota Access Pipeline, which at the time of writing had just been issued a judgement requiring the U.S. Army Corp. of Engineers to conduct an environmental impact statement.
Since the article was published, Dakota Access has been in the news even more after Judge Boasberg ordered the pipeline to be shuttered for the duration of the Environmental Impact Statement (EIS), which the Corp. suggests could take 13 months.
Many of Magness’ words ring truer than ever, notably:
“This is not the time for uncertainty. In light of the ongoing COVID-19 crisis, our nation’s pipeline network has brought entirely new security benefits to the forefront. Much unlike the American rail and trucking industry, our energy infrastructure network has been largely unaffected by the pandemic.”
As does his contention that the Dakota Access Pipeline has been subject to an unfair, and unwarranted, amount of judicial scrutiny prompted by activist groups. Throughout his piece he contrasts Dakota Access with the Bayou Bridge project that, in his words:
“…received a very different ruling despite undergoing a very similar environmental review process. Unlike the Dakota Access Pipeline decision, a U.S. district court judge determined the Army Corps adequately studied the potential environmental impact of the pipeline in compliance with the National Environmental Policy Act and the Clean Water Act.”
Dakota Access has served as a bellwether in making obvious that not all projects are treated equally despite regulations and reviews written with the intention of keeping a clear and consistent ability to assess the merits of projects. Years of review and three years of safe operation delivering resources to American consumers makes clear Dakota Access’ safety and reliability.
To onlookers, it may seem that a balanced decision would’ve honored the pipeline’s merits (safety and track record.) Rewarding the plaintiffs and punishing American businesses and households nationwide by cutting off the most critical supply line to Bakken crude oil is painfully shortsighted.