The Dangerous Precedent of the Dakota Access Pipeline Shutdown

Morning Consult recently published an op-ed by Tom Magness (U.S. Army colonel, retired), who served as a commander in the U.S. Army Corps of Engineers and now acts as a strategic adviser to the GAIN Coalition, regarding the dangerous precedent set by the Dakota Access Pipeline shutdown order.

On July 6, Judge James Boasberg ruled that the U.S. Army Corps of Engineers ran afoul of environmental laws by issuing an easement to construct a section of the pipeline across the Missouri River. Operations must be halted, he ordered, until a new analysis can be completed — a process that would take a year or more to finish. On July 14, the U.S. Court of Appeals for the District of Columbia granted Dakota Access an administrative stay to continue operations while it considers Boasberg’s ruling on appeal as to whether the pipeline should be shut.

Magness provides some brief history on the pipeline’s safe operation, as well as the rigorous permitting process it already endured:

Boasberg’s decision, which follows a concerning trend of regulating from the bench, disregards years of review and planning, not to mention the pipeline’s impressive safety record after three years in operation. The Corps studied the Dakota Access Pipeline for nearly two years prior to construction, which produced a “Finding of No Significant Impact.” In 2017, the agency performed another court-ordered, year-long review, which corroborated the original findings.

Following the Corps’ analyses, the Dakota Access Pipeline received full permitting from local, state and federal authorities. When challenged by opponents, multiple courts upheld that the pipeline complied with rules and protections in place to ensure the safety of surrounding lands, waters and communities.

The Dakota Access Pipeline has transported crude oil for three years now, further reaffirming the Corps’ initial findings. A key piece of the region’s and our country’s energy infrastructure network, the pipeline has safely transported more than half a million barrels of oil per day from North Dakota to an oil terminal in southern Illinois – a laudable achievement that speaks to the state-of-the-art technologies and safety protocols that continue to make the safest form of energy transfer even safer.

Magness also explains that Boasberg’s ruling raises serious concern for the future of infrastructure investment, and undermines the Corps’ regulatory authority:

Sadly, Judge Boasberg’s ruling undermines the Corps’ regulatory authority. It sends a message to activists and infrastructure developers in every industry that with enough public pressure the courts can move the goalposts and effectively upend any development, despite developers following all the rules and adhering to regulatory standards. The uncertainty such actions sow will discourage the investment needed to support our nation’s march towards energy independence.

The context of the decision should also give the public pause. Judge Boasberg insists the Corps and the pipeline builder would not have incentive to complete the new assessment without stopping operations of the pipeline. His position once again ignores the nature of the Corps’ work, which should proceed the same whether the operating permits were vacated or not. Considering that only about 1,000 feet of the 1,200-mile pipeline are in question, it is imprudent at best to shut down the line entirely.

In conclusion, Magness emphasizes that in light of COVID-19, now is certainly not the time to disrupt a critical component of the region’s economy – and that now more than ever before, we must trust in our country’s regulatory process:

…The Dakota Access Pipeline has helped keep fuel prices low for consumers and insulated against volatility in the global markets. And by discouraging investment in new infrastructure development, the ruling could kill jobs at a time when millions of Americans are out of work.

Our country’s regulatory process is intentionally rigorous. It is meant to ensure that development does not jeopardize the health and safety of our communities. That system is compromised when judges and courts insert their authority ahead of the professional work of the men and women tasked with the job, often on little more than a hunch.

We need to trust our regulatory process. That requires setting clear rules and sticking to them, even in the face of pressure from activists who try to game the system to achieve their ideological goals. Regrettably, Judge Boasberg’s decision does the opposite. It hands a small political victory to vocal environmentalists at the expense of our regulatory process. It is now incumbent on an appeals court to right course, uphold the Dakota Access Pipeline findings, and restore confidence for our nation’s infrastructure builders