Former Army Corps Colonel on DAPL: “Fine line between judicial oversight and regulation from the bench”

Bloomberg Law recently featured an insight from GAIN strategic advisor and former U.S. Army Corps of Engineers Colonel Tom Magness regarding the Dakota Access Pipeline and ongoing legal challenges to its operation. The pipeline’s fate remains in limbo despite nearly four years of safe operation and its critical role in providing reliable, affordable American energy to consumers.

Opponents have challenged DAPL’s ability to continue operations while the Corps completes additional environmental review for the line’s Lake Oahe crossing. The analysis is expected to be completed by March 2022. Under the Biden Administration, the Corps in recent weeks has solidified their position that DAPL should be able to remain operational as the agency completes the review.

However, despite the professional recommendation from the Corps, U.S. District Judge James Boasberg could order the pipeline be shuttered. This could have serious ramifications for American energy consumers, and the future of U.S. infrastructure permitting and development. Col. Tom Magness explains:

The issue reveals the fine line between judicial oversight and regulation from the bench. Our nation’s experts, the engineers at the Corps, have made it clear that DAPL should be allowed to continue operations. But will Boasberg step over the Corps’ regulatory authority to decide whether the pipeline can safely operate until the study is completed?

By precedent and statute, the Corps—an extension of the Executive Branch— has the authority to decide whether the pipeline should continue to operate. There are many examples, from immigration to traffic laws, in which such discretion is held at this level. In fact, a lawsuit filed by North Dakota contends that the Corps did not go far enough to assert its authority. Maybe so. But what’s certain is that the Corps’ support for keeping the pipeline running is not arbitrary.

The Corps is an organization of career, non-partisan professionals. These men and women are tasked with assessing the impact of major infrastructure projects and ensuring the safety of our communities and the environment. Their decisions are based on science and evidence, not political influence.

That the Corps ruled against shutting down the pipeline reiterates its safety, which is further proven by nearly four years of operations without a single major incident. The omitted study was a process oversight, not a safety hazard, for a 1,000-foot section representing less than 0.002% of the total pipeline.

In addition to the broad repercussions for future infrastructure development, there are immediate, severe impacts that will be felt by local and tribal communities in North Dakota and around the country. Magness notes:

Those shipments would have to be moved by rail or truck if the pipeline were shut down, which have much less reliable safety records and produce significantly higher emissions. The resulting backlog would cost producers up to $5.4 billion this year, up to $1.4 billion in lost tax revenue for local and state governments, and eliminate as many as 24,000 jobs.

This decision has broad impacts. Mark Fox, tribal chairman of the Mandan, Hidatsa and Arikara Nation, cautioned the court that if DAPL is shutdown, “much of our Reservation’s production will be difficult to move to market and future production will be sharply curtailed.”

The tribe relies on the pipeline to move about 60% of its oil production to markets. Further, more than 80% of the MHA Nation’s budget is made up of oil and gas royalties and tax revenues. The MHA Nation estimates a shutdown would incur losses of over $160 million a year.

In conclusion, Col. Magness emphasizes the rigorous and thorough nature of the U.S. regulatory process. He reiterates that it is key we trust the career professionals and experts who oversee critical infrastructure development, rather than second-guessing their analysis. While the system benefits from checks and balances offered by the courts, “it is jeopardized when jurisprudence crosses the line and prematurely usurps regulatory oversight. For that reason, it’s critical that Boasberg stand by the Corps’ decision to keep DAPL running.”