On Sunday, December 4, a civilian leader in the Army made denied an easement to the Dakota Access pipeline despite recommendations from the Army Corps of Engineers that it be granted. Due to the pipeline’s size, which is 30 inches in diameter, its approval was sent to Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy, who on behalf of the Department of the Army denied an easement for the pipeline to pass under Lake Oahe. According to Darcy, more work needs to be done in looking for an alternate route, despite the Corps having comported with all the legal requirements. However, “she was unable to give any legal reasons for the decision and could not answer any questions about rerouting the pipeline”.[i] President Barack Obama appointed Darcy to be Assistant Secretary of the Army (Civil Works) in August of 2009.[ii]
The Dakota Access Pipeline is owned by Texas-based Energy Transfer Partners LP. It is a 1,172 mile pipeline that will transport crude oil from the Bakken field in North Dakota to Patoka, Illinois, crossing through 4 states. It would transport about 470,000 barrels of oil a day, with a maximum capacity of 570,000 barrels a day. The pipeline is complete except for the segment planned under Lake Oahe–a reservoir formed by a dam on the Missouri River. The pipeline would cross 90 to 115 feet below Lake Oahe with double walled and remote-controlled shutoff valves on each side of the crossing.[iii] The portion crossing Lake Oahe is a half-mile upstream of the northern boundary of the Standing Rock Sioux reservation.
The Army indicated “that the totality of circumstances call for additional analysis, a more robust consideration of alternatives, and additional public information.” That was despite the Army Corps of Engineers’ assessment that the pipeline “met the requirements and legal standing” and its recommendation to go forward with the pipeline’s construction. Energy Transfer Partners had received full approval from the Corps and the 4 states that the pipeline would cross, obtaining all the permits it needed before beginning construction. Further, two courts reviewed the 2-year review and permitting process and approved the completion of the pipeline, finding that the Corps had taken the necessary steps to review the pipeline’s route and meet with the parties affected by it.
The Army Corps of Engineers plans to look at possible alternate routes, although any other route will likely cross the Missouri River. The pipeline is already costing Energy Transfer Partners $3.8 billion. Any rerouting at this stage of its completion would add significantly to its cost.
Darcy indicated that the documents that were part of an environmental assessment, including a “Lake Oahe Crossing Spill Model Discussion,” were classified as confidential due to security concerns and were withheld from the public and the tribe.
Trump Will Likely Approve the Pipeline
The Obama Administration ignored the rule of law, denying the easement and ignoring the court decisions that found in favor of the Army Corps of Engineers. In September, a judge ruled in favor of the pipeline and against the Standing Rock Sioux tribe and other opponents, who wanted construction halted because they claim there may be possible contamination of drinking water and disruption to culturally important sites. Immediately after the judge ruled in favor of the pipeline, three federal agencies (Interior, Justice, and the Army Corps of Engineers) halted the pipeline’s construction. In October, a judge denied a legal request for a stay of construction, after which those same Obama federal departments issued a stop-work order on the part of the pipeline crossing the Oahe Lake.
Despite the most recent decision from Darcy, it is likely that President-Elect Trump will reverse the decision and approve the easement for the lake crossing. The president-elect intends to “cut the red tape” that is blocking key energy projects and promote policies that benefit all Americans. According to Jason Miller, a spokesman for the Trump transition team, the pipeline “is something we support construction of, and we will review the situation when we are in the White House to make the appropriate determination at that time.”[iv]
President Obama’s decision not to issue the final easement is a rejection of the regulatory and judicial system and may cause needed pipeline investment to decline. This is the second oil pipeline that President Obama’s team has put a halt to—Keystone XL being the first. Despite Obama’s EPA Administrator saying that this is not a trend[v], others may have doubts.
[i] Politico, Obama administration blocks Dakota pipeline, angering Trump allies, December 4, 2016, http://www.politico.com/story/2016/12/us-army-corps-blocks-dakota-access-pipeline-232172
[ii] NBC News, Army Corps of Engineers Had Actually Recommended Dakota Access Pipeline Route Approval, December 7, 2016, http://www.nbcnews.com/storyline/dakota-pipeline-protests/army-corps-engineers-had-actually-recommended-dakota-access-pipeline-route-n692826
[iii] NBC News, What’s Next for the Dakota Access Pipeline? Some Protesters Wary of Future, December 5, 2016, http://www.nbcnews.com/storyline/dakota-pipeline-protests/what-s-next-dakota-access-pipeline-some-protesters-wary-future-n691881
[iv] Bloomberg, Trump Vows Prompt Review of Rejection of Dakota Pipeline, December 5, 2016, https://www.bloomberg.com/news/articles/2016-12-04/u-s-army-corps-of-engineers-denies-dakota-access-pipe-permit
[v] BNA, No Effect on Pipelines Despite Pause On Dakota Project: EPA, December 5, 2016, https://www.bna.com/no-effect-pipelines-n73014448122/