Rule of Law at Stake in Dakota Access Pipeline Project

Mark Green
Posted September 13, 2016

The situation in North Dakota with the Dakota Access Pipeline (DAPL) – with various groups trying to shut down construction of a legally permitted project that’s almost 60 percent finished  – is about more than a pipeline, infrastructure needs, economic growth and job creation. It’s about more than U.S. energy security, which the project will strengthen.

It’s about the rule of law in this country. It’s about whether established processes for project review and approval by duly authorized agencies can be overturned if a protest is noisy enough or turns violent. It’s about whether a federal judge’s ruling upholding a project’s legally obtained permits can be overturned for political reasons – as certainly appears to be the case with the Obama administration’s intervention on the DAPL.

Let’s be clear: If what the Obama administration has done in North Dakota stands, a precedent will be set that could put at risk all kinds of infrastructure construction – pipelines, roads, bridges, power transmission lines and more.

API President and CEO Jack Gerard joined Sean McGarvey, North America’s Building Trades Union president, in calling on government to uphold the rule of law on the DAPL project during a conference call with reporters. Gerard:

“An action like this near as we can tell is unprecedented and it raises the legal questions. But it also poses the question of ... (condoning) lawlessness. It allows people to engage in activities suggesting that the rule of law doesn’t matter anymore. Everybody got a permit, everybody followed the rules. A third-party, independent judge appointed by the president came back and reaffirmed that. That’s regular order, regular process. … It’s the action after that that’s unprecedented, that raises all sorts of legal questions and creates uncertainty and a chilling effect on the billions of dollars that could be brought to bear to create jobs and benefit American consumers.”

McGarvey:

“This is about the Obama administration making what we believe is an unprecedented decision, very disappointing. … Quite honestly, we’re just scratching our heads.”

A few facts about DAPL (check out North Dakota blogger Rob Port’s post for a deeper dive on recent developments):

• The 1,172-mile project will link oil from the Bakken and Three Forks shale plays with major refining markets in Illinois in a direct, cost-effective, safe and environmentally responsible manner. The 30-inch pipeline will deliver about 470,000 barrels per day, with a capacity as high as 570,000 barrels per day.
• The North Dakota portion of the project represents a $1.4 billion investment, with the state estimated to receive more than $13 million in property taxes and $18 million in sales taxes during construction, which will support thousands of jobs in the state.
• The project passed reviews by four regulatory boards and gained approval from the U.S. Army Corps of Engineers.
• The pipeline doesn’t cross into tribal lands. Over a two-year period the Corps consulted tribal and other stakeholders on more than 250 occasions.

Certainly, protection of the environment and the rights of local citizens are taken seriously by industry, and that includes the DAPL. Yet, those are not the issue here. The DAPL is a question of law. The pipeline doesn’t cross into tribal lands; the Standing Rock Sioux are trying to assert use restrictions on property that’s not theirs. While the tribe asserts that land outside their territory was inappropriately taken in a series of treaties more than 150 years ago, that’s a completely separate argument and shouldn’t be conflated with the issue at hand.

It’s a fact that pipelines are one of the safest ways to transport energy, with 99.999 percent of deliveries reaching their destinations safely. Building pipelines is essential to U.S. energy security, delivering oil and natural gas from production areas like North Dakota to refining facilities, where fuels and other finished products are manufactured that benefit all Americans.

Still, aside from the jobs and energy, the main issue at stake with the DAPL is the rule of law and fundamental standards of fairness – which when undermined puts investments at risk and also the livelihoods of regular Americans. McGarvey:

“A lot of our members are working on this, it’s important to their families. … These are people that were just going to work, just trying to go to work to feed their families. They’re not ideologues. They’re not involved in this bigger conversation about the energy future of the country. These are craftspeople, men and women who went there to do their job and go home at the end of the day. And they’re scared to death.”

That’s not America. We are a nation of laws. There are established processes and reviews for following, and these ultimately may be weighed by a judicial authority. All are present in the DAPL case. What we have is the administration’s unilateral intervention, outside the established regular order, that is broadly counter to regular, legal order. Gerard:

“This change sets a dangerous precedent for our country that could threaten all other critical infrastructure projects. … This is unfair to the country that depends on this infrastructure and the American workers that build it. … Moving forward, it’s critical that the rule of law is followed as the need for new energy infrastructure grows.”