February 20 should have marked the comment deadline on the Army Corps of Engineers (ACOE or the “Corps”) decision whether to grant an easement for of a portion of the Dakota Access Pipeline (DAPL). Except the President ended comments early.
On January 24, the President signed a Memorandum moving DAPL forward and abruptly ending any public input process.
Whose Water is it Anyway?
The DAPL pipeline would span approximately 1,172 miles connecting North Dakota’s Bakken and Three Forks oil to an existing crude oil terminal near Pakota, Illinois. Thirty inches in diameter, the pipeline projects transporting between 470,000 and 570,000 barrels of oil per day.
The operator, Energy Transfer Partners (ETP), sought an easement so ETP’s pipeline could cross Lake Oahe on the Missouri River in North Dakota. The pipeline intends to cross Corps property, yet the Standing Rock Sioux tribe owns downstream portions of Lake Oahe and maintains fishing rights throughout.
The Tribe and allied opponents have spent months camping in the way of DAPL’s path. Protests there have drawn national attention to tribal hunting and fishing rights, environmental protection, and our government’s disrespect of citizens and tribal sovereignty. Facing forcible eviction, some occupants burned portions of the encampment.
The Right Way to Do This
Aware of the controversy, the Obama Administration’s ACOE announced on December 4, 2016, their desire to consider alternative routes. On January 18, 2017, ACOE said they would conduct a full Environmental Impact Statement (EIS) on whether to grant the easement. An EIS, established by the 1969 National Environmental Policy Act (NEPA), ensures that agencies consider the environmental impacts of their decisions.
As importantly, NEPA requires a public comment period allowing communities to share their concerns with regulators. It is that comment period which should have ended last week, but for President Trump effectively approving the pipeline.
The Wrong Way to Do This
That the Trump Administration reversed course on DAPL is not, in and of itself, all that shocking. It’s more the timing and manner of this course reversal, conducted apparently with all the thought, deliberation, and careful analysis of the “Muslim ban”. Federal agencies may not just whimsically change their minds. Capricious behavior violates the Administrative Procedures Act, the law ensuring that agencies provide due process and make reasoned decisions. This is analogous to a basketball referee declaring a winner, just as the lead changes hands, before time has expired.
Ultimately, undercutting community and Tribal input may prove less efficient than had the Trump Administration simply played by the rules. NEPA does not dictate an outcome, just a hard look, fair process, and the right to be heard. Arbitrarily yanking the EIS during the comment period gives more fuel to the litigation seeking to stop DAPL. They might have simply waited a few extra days. Instead, this careless decision-making may find the Administration back at the drawing board, just like with their Muslim ban.