Opinion

The Dangerous Precedent of the Dakota Access Pipeline Shutdown

By Tom Magness
July 22, 2020 at 5:00 am ET

A district judge this month ordered the Dakota Access Pipeline to be shut down until the U.S. Army Corps of Engineers can conduct another lengthy environmental review. While environmentalists and pipeline opponents are cheering, the ruling threatens to disrupt the region’s energy production and sets a dangerous precedent for American infrastructure development.

On July 6, Judge James Boasberg ruled that the U.S. Army Corps of Engineers ran afoul of environmental laws by issuing an easement to construct a section of the pipeline across the Missouri River. Operations must be halted, he ordered, until a new analysis can be completed — a process that would take a year or more to finish. On July 14, the U.S. Court of Appeals for the District of Columbia granted Dakota Access an administrative stay to continue operations while it considers Boasberg’s ruling on appeal as to whether the pipeline should be shut.

Boasberg’s decision, which follows a concerning trend of regulating from the bench, disregards years of review and planning, not to mention the pipeline’s impressive safety record after three years in operation. The Corps studied the Dakota Access Pipeline for nearly two years prior to construction, which produced a “Finding of No Significant Impact.” In 2017, the agency performed another court-ordered, year-long review, which corroborated the original findings.

Following the Corps’ analyses, the Dakota Access Pipeline received full permitting from local, state and federal authorities. When challenged by opponents, multiple courts upheld that the pipeline complied with rules and protections in place to ensure the safety of surrounding lands, waters and communities.

The Dakota Access Pipeline has transported crude oil for three years now, further reaffirming the Corps’ initial findings. A key piece of the region’s and our country’s energy infrastructure network, the pipeline has safely transported more than half a million barrels of oil per day from North Dakota to an oil terminal in southern Illinois – a laudable achievement that speaks to the state-of-the-art technologies and safety protocols that continue to make the safest form of energy transfer even safer.

It’s important to note that U.S. Army Corps of Engineers is a nonpolitical agency charged with ensuring the safety of our communities and the environment. Its work is informed by evidence, not politics. The organization is made up of career professionals whose decisions are grounded in science and data. That objectivity is critical to providing certainty to the public that any project under the Corps’ jurisdiction adheres to the highest standards of excellence.

Sadly, Judge Boasberg’s ruling undermines the Corps’ regulatory authority. It sends a message to activists and infrastructure developers in every industry that with enough public pressure the courts can move the goalposts and effectively upend any development, despite developers following all the rules and adhering to regulatory standards. The uncertainty such actions sow will discourage the investment needed to support our nation’s march towards energy independence.

The context of the decision should also give the public pause. Judge Boasberg insists the Corps and the pipeline builder would not have incentive to complete the new assessment without stopping operations of the pipeline. His position once again ignores the nature of the Corps’ work, which should proceed the same whether the operating permits were vacated or not. Considering that only about 1,000 feet of the 1,200-mile pipeline are in question, it is imprudent at best to shut down the line entirely.

As the region continues to grapple with the COVID-19 pandemic, now is not the time to disrupt a critical component of the region’s economy. The Dakota Access Pipeline has helped keep fuel prices low for consumers and insulated against volatility in the global markets. And by discouraging investment in new infrastructure development, the ruling could kill jobs at a time when millions of Americans are out of work.

Equally troubling, the order to shut down the Dakota Access Pipeline will increase reliance on truck and rail transportation, which have a much poorer safety – and environmental – record, and put a significant strain on overland options. When it became operational, the Dakota Access Pipeline removed up to 700 train car shipments per day — which, ironically, traversed the tribal land for years over a river bridge near a planned water intake facility.

Our country’s regulatory process is intentionally rigorous. It is meant to ensure that development does not jeopardize the health and safety of our communities. That system is compromised when judges and courts insert their authority ahead of the professional work of the men and women tasked with the job, often on little more than a hunch.

We need to trust our regulatory process. That requires setting clear rules and sticking to them, even in the face of pressure from activists who try to game the system to achieve their ideological goals. Regrettably, Judge Boasberg’s decision does the opposite. It hands a small political victory to vocal environmentalists at the expense of our regulatory process. It is now incumbent on an appeals court to right course, uphold the Dakota Access Pipeline findings, and restore confidence for our nation’s infrastructure builders.

Tom Magness (U.S. Army colonel, retired) served as a commander in the U.S. Army Corps of Engineers; he is the founder of the Eagle Leadership Group and acts as a strategic adviser to the Grow America’s Infrastructure Now Coalition.

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