Tuesday, December 6, 2016

Obama’s Last Stand

The White House tries to kill another pipeline for U.S. oil.

By Review & Outlook
The Wall Street Journal
December 6, 2016

The U.S. Army Corps of Engineers on Sunday delivered a symbolic victory to the environmental left by denying a permit to complete the 1,200-mile Dakota Access oil pipeline. The political obstruction illustrates why it’s so hard to build anything in America these days.

Construction is almost complete on the Dakota Access, which aims to transport a half million barrels of oil each day from the Bakken Shale in North Dakota to Illinois for delivery to refiners on the East and Gulf coasts. About 99% of the pipeline doesn’t require federal permitting because it traverses private lands. But the Corps must sign off on an easement to drill under Lake Oahe that dams the Missouri River.

After an exhaustive consultation with Native American tribes, the Corps in July issued an environmental assessment of “no significant impact.” Construction is unlikely to harm tribal totems because the Dakota Access would parallel an existing gas pipeline. The route has been modified 140 times in North Dakota to avoid upsetting sacred cultural resources.

After largely refusing to engage in the Corps’s review, the Standing Rock Sioux sued. A federal court in September rejected the tribe’s claims, only to be overruled by the Obama Administration, which ordered a temporary suspension to work around Lake Oahe. Although the D.C. Circuit Court of Appeals in October refused to enjoin construction on the pipeline, the Corps has maintained its administrative injunction.

Tensions have escalated between local law enforcement and protesters, who have signaled an intent to defy Corps orders to disband before Dec. 5. North Dakota winters are cold, and a charitable reading of the Corps’s political mediation is that the Administration is trying to allow squatters to save face so that they can disperse before imperiling their own safety.

However, the Corps’s switcheroo has jeopardized its integrity and created a legal quagmire by requiring an exhaustive new environmental impact statement that considers alternative routes. This process could take years and is not normally required when an environmental assessment concludes no significant impact.

The pipeline builder Energy Transfer Partners could sue the Corps for violating due process, though a judge might rule the company lacks standing since the government hasn’t made a final determination. Energy Transfer is likely better off waiting for the Trump Administration.

A spokesman for Mr. Trump said the President-elect supports construction of the pipeline but would “review the full situation when we’re in the White House and make the appropriate determination at that time.” This protects the Trump Administration from claims of predetermination, but it won’t stop environmental groups from suing if Mr. Trump reverses the Obama Administration’s course.

Energy Transfer devised the least intrusive route to expedite permitting but it still got caught between the Standing Rock tribe and no-fossil-fuels greens who have turned the Dakota Access into a Battle of the Alamo. If Mr. Trump wants to build more infrastructure, a top-to-bottom renovation of permitting regulations is a good place to start.

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