Dakota Access Pipeline Ruling Points the Way for Regulators, Not Issue Advocates
The District of Columbia Circuit Court of Appeals provided some much needed, common sense clarity on the future of the Dakota Access Pipeline last month after months of legal limbo.
In a unanimous ruling, the three-judge court upheld U.S. District Judge James E. Boasberg’s decision last year that the U.S. Army Corps of Engineers – which is responsible for weighing the potential impacts of major infrastructure projects and providing recommendations about whether they should be permitted – should have conducted an additional environmental impact statement for a 1,000-foot section of pipe under Lake Oahe.
The appellate court disagreed, however, with the lower court’s ruling that the pipeline should be shuttered and emptied until the assessment can be completed – an extensive process that could take a year or longer.
Some believe this decision is a blow to the pipeline operator. Some believe it hurts the challengers. It shouldn’t be either. In fact, it is an opportunity to let regulators do their job and let the facts speak for themselves once the full and final analysis is available.
At issue isn’t whether the entire pipeline is safe – more than 1,000 permits and approvals and some 600 hearings and consultations suggest it is – but rather whether the thousand-foot section, less than 0.02% of the full development, is safe. The fact that the court ruled that operations should continue indicates the Corps’ initial evaluation was sufficiently thorough—a piece was just missing.
If anything, the ruling should restore confidence in the regulatory process. The perceived omission can now be addressed by the experts.
Furthermore, the additional environmental review should be allowed to move forward unobstructed by politics—and that may be the real challenge. Critics of the pipeline have used the courts’ rulings to revive arguments that the spigots should be turned off and the entire $4 billion pipeline shut down. They have called on President Biden to intervene. In late 2019, Mike Faith, Chairman of the Standing Rock Sioux Tribe, pledged the “fight is not over,” and urged the courts to throw out all permits issued for the project.
It is important is that the experts tasked with assessing the project – in this case, the career engineers of the Army Corps – are able to conduct their business and provide objective findings. The evidence should guide decision making. With the Dakota Access Pipeline, the Corps found the risk of an incident to be “not just low, but remote and speculative.” In the event of a spill, the effects would be limited, including by a more than 90-foot natural clay barrier between the pipeline and adjacent waters. In fact, many of the worst-case scenarios offered by challengers were “not just unlikely, but physically impossible,” according to assessments.
If safety were really the issue, opponents might find themselves arguing for the pipeline, not against it. Pipelines boast a more than 99.9% success rate, the strongest safety track record of any form energy transportation. The Dakota Access Pipeline removed 700 railcar shipments of oil per day, some of which traveled across tribal lands for years. An existing pipeline runs a similar path along Lake Oahe and has operated successfully for more than 35 years, and the Dakota Access Pipeline has operated for more than three and a half years without incident.
But safety does not seem to be the primary consideration for most. Instead, theirs is an ideological goal – to keep fossil fuels in the ground – and many acknowledge it. There is a time for policy debates about climate change and carbon controls, but they shouldn’t come at the expense of the regulatory system. For our economy to grow and create jobs – every sector, not just the energy industry – it is imperative to have a reliable, predictable and definitive regulatory process. And, by the way, that’s good for everyday individuals and families, too.
The wheels of the regulatory systems should not be halted – or, perhaps better put, pulled from the rails entirely – to achieve political victories. Policy decisions should be made at the policy table. Regulators should then have the autonomy to conduct the work they are charged by law to accomplish without the second-guessing of politicians, issue advocates or judges with an ax to grind.
The Army Corps said as much in brief that cautioned that regulation from the bench “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 U.S. energy regulatory system is rigorous and exhaustive, and for good reason. There should be room to identify errors and correct them—and the courts appeared to get that right with the ruling from the Circuit Court of Appeals. But there should be no tolerance for endless starts and stops to the process, which creates uncertainty for industry and diminishes public faith in the system.
In the case of the Dakota Access Pipeline, it’s time to allow regulators do their job and let their findings dictate next steps. Let’s save the climate change debates for the halls of Congress and the White House – not the oil fields of North Dakota.
Patrice Douglas is an attorney and former chairman of the Oklahoma Corporation Commission.