Judge Got It Right With Dakota Access Pipeline Ruling

Judge Got It Right With Dakota Access Pipeline Ruling
(AP Photo/Nati Harnik, File)
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After much legal wrangling, U.S. District Court Judge James Boasberg recently ruled the Dakota Access Pipeline (DAPL) can continue to operate while additional environmental review is conducted for a 1,000-foot water crossing under Lake Oahe. The review is expected to be completed by next March.

The decision came after the U.S. Army Corps of Engineers—the experts tasked with evaluating major infrastructure projects and providing objective guidance about permitting—declined to suspend operations of the pipeline last month while they continue their environmental review. The Corps’ decision indicates that the pipeline can safely remain in operation while the review is completed. After all, the project received thousands of permits after thorough assessment, all of which point to the line’s safety. Not to mention, it has been safely running for nearly four years now.

The situation had raised legitimate questions, if not concerns, about the balance between legal oversight and regulatory powers. Judges and lawyers are good at parsing legalese. They are not experts experienced at assessing the technical detail necessary to determine the safety of sophisticated, complex infrastructure. Regulators, on the other hand, are. The Biden Administration has seemed to recognize the same, also refusing to order a shutdown this spring. President Biden’s Energy Secretary Jennifer Granholm recently went on the record noting “pipe is the best way to go” when transporting oil.

Despite what pipeline opponents might claim, Judge Boasberg got it right, too - upholding the U.S. Army Corps of Engineers’ decision and in effect establishing the precedent that the regulatory experts should have authority over pipeline safety.

At issue is not whether the Dakota Access Pipeline is safe. The rigorous study before the first ground was broken and the four years of successful operation since it began running confirm that it is. Instead, it is a matter of whether an omitted study for a section of less than 0.002 percent of the entire pipeline should warrant halting the entire project. Common sense would say no.

The potential for a DAPL shutdown raised real concern, as the impacts could be devastating. The recent disruption of the Colonial Pipeline caused by a cyberattack demonstrates how vulnerable U.S. energy markets are. Prices at the pump increased. Lines backed up at gas stations, scenes reminiscent of the oil shocks of the 1970s. Many gas stations on the East Coast ran out of fuel. Consumers filled gas cans and even plastic bags. While the line is back in service, we are still experiencing the highest gas prices in six years. 

Halting the Dakota Access Pipeline for nearly a full year could be even more consequential. The pipeline moves about half a million barrels of Bakken crude oil per day. Legal filings suggest the disruption could cause as much as $1.4 billion in lost tax revenue and 24,000 jobs. The Mandan, Hidatsa and Arikara (MHA) Nation, transports more than 60 percent of its oil via DAPL, and oil and gas royalties make up more than 80 percent of the tribe’s annual budget. The estimated loss in revenue to the MHA Nation in the event of a DAPL shutdown would be more than $160 million for a one-year period – with schools, healthcare, and other infrastructure projects on the reservation taking the hit.

There would have been safety and environmental consequences of a shutdown, too. The move would have shifted shipments to rail and truck, which have a much poorer track record. A study by the Fraser Institute found that rail shipments were more than 4.5 times likely to experience an accident than pipelines, even though rail and truck incidents are more likely to go unreported. Increased transport by rail could have caused problems for farmers trying to get their crop to market, or for the already financially-stressed towns facing pricey road-crossing repairs. Further, trains and trucks also emit higher levels of pollution, taking us a step backwards in achieving our environmental goals.

A shutdown would’ve also sent a dangerous message to infrastructure builders—that even when a project follows the rules, the goal posts may be moved arbitrarily even years later. That certainly would give developers pause, which, in turn, could stall the United States’ march toward energy independence.

There is a healthy balance between legal oversight and regulatory authority. The courts were not necessarily wrong to order the additional review be completed. But Judge Boasberg’s decision last week set an important precedent: trust the process and the experts involved.

Patrice Douglas is an attorney and former chairman of the Oklahoma Corporation Commission.  

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