Richard Epstein
His executive actions pave the way for the prompt completion of a much needed project
On January 24, 2017, President Donald J. Trump issued a Presidential Memorandum (PM) regarding construction of the Dakota Access Pipeline to the Secretary of the Army detailing the future procedures that should be adopted to expedite the approval of the Dakota Access Pipeline (DAPL). A PM has somewhat less authority than the better known, and more general, Executive Order, but has the same force of law for the individual projects that it governs. The Dakota Access PM was issued at the same time as several related PM’s. One of these authorized the Secretaries of State, the Army and the Interior to expedite the completion of the Keystone XL Pipeline: a separate Executive Order called for the expedition of environmental approval of high priority infrastructure projects, and an associated PM dealt generally with the construction of American Pipelines.
It seems virtually certain that the PM on DAPL will cut through the tangled confusion that surrounded and blocked the issuance of permits and easements to Dakota Access (DA) in the last six months of the Obama administration. The PM does not, of course, grant the approvals needed to put finish the construction of the pipeline, but it authorizes an expedited pathway for approval that will be difficult, if not impossible to stop, through judicial challenges that might be raised by the Standing Rock Sioux Tribe (SRST), or their supporters.
The initial paragraph of the PM notes the President believes “that construction and operation of lawfully permitted pipeline infrastructure serve the national interest,” and then details the procedures intended to make sure that this happens. Section 2 of the PM then orders the Secretary of the Army to instruct both the Assistant Secretary of the Army for Civil Works and the U.S. Army Corps of Engineers (USACE) to “review and approve in an expedited manner” all the permits and easements that are necessary for DAPL completion. It was the recent actions of these two bodies in the last six months of the Obama Administration that had slowed the approval process down to a crawl. The PM also noted that the final easement needed under Section 185(w) of the Mineral Leasing Act should be granted as quickly as possible under the applicable statutes for which a shorter EA dealing with Grassland and Wetland Easement Crossings had been prepared in December 2015. The PM also authorizes the waivers of any notice periods that are often imposed by the USACE to collect information on the relevant decision.
Most critically, the PM explicitly instructs both the Assistant Secretary and Corps to rely on their determination on the information that was contained in the exhaustive 1,261 page Environmental Assessment (EA) that DAPL had previously submitted to the Corps. It also authorizes the Secretary to rely on a Memorandum prepared by the engineers in the Omaha District of the Army Corps on December 3, 2016 that in explicit terms recommended that the easement to cross Lake Oahe, located near but not on the SRST’s tribal lands, be granted.
The immediate public reaction to Trump’s actions on both Keystone XL and Dakota Access was divided. North Dakota Democratic Senator Heidi Heitkamp, House Republican Speaker Paul Ryan and many others came out strongly in favor of the DAPL, while the Standing Rock Sioux Tribe (SRST) expectedly denounced the decision. In sharp contrast, the SRST claims that “[t]he existing pipeline route risks infringing on our treaty rights, contaminating our water and the water of 17 million Americans downstream,” without once addressing the explicit findings by the Army Corps of the far greater dangers posed by the tribe’s preferred longer route that ran further to the north. The PM received an unqualified denunciation by Senator Bernie Sanders, who claimed that the decision to facilitate pipeline approvals will "put the short-term profits of the fossil fuel industry ahead of the future of our planet." But, as is usual with similar fact-free denunciations, the general condemnation is not followed with any examination of the record. Given the ferocity of the opposition it is appropriate to review the earlier history of this entire matter, which makes good on the Trump claim that the permit process had been abused in this particular case.
Anyone who cares to review the overall public record in depth will realize that the earlier permitting history of the pipeline, which I have discussed here and here in my capacity as an advisor to the Midwest Alliance for Infrastructure Now, or MAIN Coalition, reveals a grim picture of obstruction and delay by the former Obama Administration spurred on by the SRST. The Obama Administration rejected the project’s approval, even after being presented with information that the project and the Corps met and exceeded every requirement of law. The actions of the Obama administration were a prolonged illustration of how the brazen actions of political appointees could override the careful professional judgment inside the Corps of Engineers. As part of the general political plan, the nonstop denunciations of DAPL were intended to secure the only result that the SRST ever wanted, which is that DAPL never be built, no matter what the equities. Anyone who doubts that sharp condemnation need only read the impassioned and categorical pleas by the opponents of DAPL to make, for example, “every day in December to be a “day of #NoDAPL action” and contrast them with the detailed accounts of the accommodations made to DAPL opponents, collected here, that had been offered by Dakota Access who, prior to the latest PM had to deal with massive obstruction from the SRST long after the routing and approval process was completed. Court records from the Corps of Engineers and Dakota Access carefully show the extent to which the SRST failed to willingly participate in the process.
In effect, even though Dakota Access was tasked under the applicable statutes to conduct the requisite surveys, the SRST refused to cooperate with them, only to insist thereafter that they were not allowed to have sufficient input into the project, which in their mind was tantamount to a veto power over any project built over traditional Sioux land. Notwithstanding, their resistance Dakota Access filed exhaustive papers on the matter on which Judge James Boasberg issued a favorable decision in his opinion on September 9, 2016. Nonetheless, far from putting the entire matter to rest, his decision only set the stage for the Department of Justice, the Department of the Army, and the Department of the Interior to issue that same day a joint statement that commended Judge Boasberg for his excellent work, only to announce that they would not authorize the construction of the pipeline, until the Obama administration had reviewed in detail all of its previous decisions made under the National Environmental Policy Act (NEPA) and other laws
Activists at Oceti Sakowin near the Standing
Rock Sioux Reservation brace for sub-zero temperatures expected
overnight on December 6, 2016 outside Cannon Ball, North Dakota.
(Credit: Scott Olson/Getty Images)
On January 24, 2017, President Donald J. Trump issued a Presidential Memorandum (PM) regarding construction of the Dakota Access Pipeline to the Secretary of the Army detailing the future procedures that should be adopted to expedite the approval of the Dakota Access Pipeline (DAPL). A PM has somewhat less authority than the better known, and more general, Executive Order, but has the same force of law for the individual projects that it governs. The Dakota Access PM was issued at the same time as several related PM’s. One of these authorized the Secretaries of State, the Army and the Interior to expedite the completion of the Keystone XL Pipeline: a separate Executive Order called for the expedition of environmental approval of high priority infrastructure projects, and an associated PM dealt generally with the construction of American Pipelines.
It seems virtually certain that the PM on DAPL will cut through the tangled confusion that surrounded and blocked the issuance of permits and easements to Dakota Access (DA) in the last six months of the Obama administration. The PM does not, of course, grant the approvals needed to put finish the construction of the pipeline, but it authorizes an expedited pathway for approval that will be difficult, if not impossible to stop, through judicial challenges that might be raised by the Standing Rock Sioux Tribe (SRST), or their supporters.
The initial paragraph of the PM notes the President believes “that construction and operation of lawfully permitted pipeline infrastructure serve the national interest,” and then details the procedures intended to make sure that this happens. Section 2 of the PM then orders the Secretary of the Army to instruct both the Assistant Secretary of the Army for Civil Works and the U.S. Army Corps of Engineers (USACE) to “review and approve in an expedited manner” all the permits and easements that are necessary for DAPL completion. It was the recent actions of these two bodies in the last six months of the Obama Administration that had slowed the approval process down to a crawl. The PM also noted that the final easement needed under Section 185(w) of the Mineral Leasing Act should be granted as quickly as possible under the applicable statutes for which a shorter EA dealing with Grassland and Wetland Easement Crossings had been prepared in December 2015. The PM also authorizes the waivers of any notice periods that are often imposed by the USACE to collect information on the relevant decision.
Most critically, the PM explicitly instructs both the Assistant Secretary and Corps to rely on their determination on the information that was contained in the exhaustive 1,261 page Environmental Assessment (EA) that DAPL had previously submitted to the Corps. It also authorizes the Secretary to rely on a Memorandum prepared by the engineers in the Omaha District of the Army Corps on December 3, 2016 that in explicit terms recommended that the easement to cross Lake Oahe, located near but not on the SRST’s tribal lands, be granted.
The immediate public reaction to Trump’s actions on both Keystone XL and Dakota Access was divided. North Dakota Democratic Senator Heidi Heitkamp, House Republican Speaker Paul Ryan and many others came out strongly in favor of the DAPL, while the Standing Rock Sioux Tribe (SRST) expectedly denounced the decision. In sharp contrast, the SRST claims that “[t]he existing pipeline route risks infringing on our treaty rights, contaminating our water and the water of 17 million Americans downstream,” without once addressing the explicit findings by the Army Corps of the far greater dangers posed by the tribe’s preferred longer route that ran further to the north. The PM received an unqualified denunciation by Senator Bernie Sanders, who claimed that the decision to facilitate pipeline approvals will "put the short-term profits of the fossil fuel industry ahead of the future of our planet." But, as is usual with similar fact-free denunciations, the general condemnation is not followed with any examination of the record. Given the ferocity of the opposition it is appropriate to review the earlier history of this entire matter, which makes good on the Trump claim that the permit process had been abused in this particular case.
Anyone who cares to review the overall public record in depth will realize that the earlier permitting history of the pipeline, which I have discussed here and here in my capacity as an advisor to the Midwest Alliance for Infrastructure Now, or MAIN Coalition, reveals a grim picture of obstruction and delay by the former Obama Administration spurred on by the SRST. The Obama Administration rejected the project’s approval, even after being presented with information that the project and the Corps met and exceeded every requirement of law. The actions of the Obama administration were a prolonged illustration of how the brazen actions of political appointees could override the careful professional judgment inside the Corps of Engineers. As part of the general political plan, the nonstop denunciations of DAPL were intended to secure the only result that the SRST ever wanted, which is that DAPL never be built, no matter what the equities. Anyone who doubts that sharp condemnation need only read the impassioned and categorical pleas by the opponents of DAPL to make, for example, “every day in December to be a “day of #NoDAPL action” and contrast them with the detailed accounts of the accommodations made to DAPL opponents, collected here, that had been offered by Dakota Access who, prior to the latest PM had to deal with massive obstruction from the SRST long after the routing and approval process was completed. Court records from the Corps of Engineers and Dakota Access carefully show the extent to which the SRST failed to willingly participate in the process.
In effect, even though Dakota Access was tasked under the applicable statutes to conduct the requisite surveys, the SRST refused to cooperate with them, only to insist thereafter that they were not allowed to have sufficient input into the project, which in their mind was tantamount to a veto power over any project built over traditional Sioux land. Notwithstanding, their resistance Dakota Access filed exhaustive papers on the matter on which Judge James Boasberg issued a favorable decision in his opinion on September 9, 2016. Nonetheless, far from putting the entire matter to rest, his decision only set the stage for the Department of Justice, the Department of the Army, and the Department of the Interior to issue that same day a joint statement that commended Judge Boasberg for his excellent work, only to announce that they would not authorize the construction of the pipeline, until the Obama administration had reviewed in detail all of its previous decisions made under the National Environmental Policy Act (NEPA) and other laws
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