When it comes to regulatory litigation, expertise and common sense must prevail over political obstructionism

As litigation surrounding the Dakota Access Pipeline (DAPL) drones on even after years of incident-free operation, it has become clear that regulatory tools designed to ensure the safety of pipelines have been weaponized against their very existence. In a recent op-ed in Law360, David Hill, adjunct research scholar at Columbia University’s Center on Global Energy Policy and former general counsel at the Department of Energy, describes how superfluous challenges to major infrastructure projects like DAPL defy reason and undermine economic progress.

The Dakota Access Pipeline has been the subject of obstructionist litigation since its inception. Despite years of review, hundreds of hearings, and over 1,000 permits, a recent case contends that the U.S. Army Corps of Engineers, which evaluated and studied the proposed pipeline before ultimately granting the necessary permits for its construction, should have done additional environmental analysis for a short section that runs deep under Lake Oahe in North Dakota. But Hill points out that the challengers seem to have a much broader agenda than just Lake Oahe:

It seems clear that the real basis for the challenge to the DAPL isn’t really the 1,000 feet of it that are legally at issue…The real reasons seem to be the policy objections some have to the production of oil in North Dakota, and what they believe should be done to address climate change.

When regulatory litigation becomes a proxy for political activism, entire industries can be undermined by a single bad ruling. The upcoming decision on whether DAPL will be forced to suspend operations indefinitely will have broad and long lasting implications, and it is worth taking a step back to ask why it falls on judges to override the opinions of non-partisan technical experts. Hill argues:

The corps rightfully contends that the district court’s decision, if not corrected, will create a “new, heightened standard of judicial review that will be impossible for agencies to meet as they consider vital infrastructure projects that excite opposition from some sector of society.

The result would be a less ambitious and innovative energy infrastructure industry, whose retraction would contribute to a weaker national economy and reduced job opportunities. Avoiding that outcome begins with a ruling that enables DAPL to continue operating safely, just as it has for the last three years. Hill concludes:

In the end, the actual legal question isn’t whether the district judge or anyone else agrees with the expert judgments of the corps…The only real question is whether the corps’ conclusions are rational and supported by the administrative record. Because they are, the already-completed DAPL should be allowed to continue operating.