Sean Hackbarth Sean Hackbarth
Senior Editor, Digital Content, U.S. Chamber of Commerce


January 19, 2017


The Obama era is drawing to a close, but the saga of the Dakota Access Pipeline continues.

As President Barack Obama and his administration packs up and leaves office, they threw a wrench in the works of finishing the beneficial energy infrastructure project:

The Army published a notice Wednesday of its intent to prepare an environmental impact statement on the Lake Oahe crossing. Texas-based developer Energy Transfer Partners won't be able to lay pipe under the reservoir while the study is ongoing — it is currently blocked from doing so anyway. A study could take up to two years, according to the Energy Department.

ETP asked U.S. District Judge James Boasberg on Tuesday to block the study; he scheduled a hearing for Wednesday afternoon in Washington, D.C.

Judge Boasberg allowed the Corps to proceed:

A federal judge said Wednesday he won't keep the U.S. Army Corps of Engineers from launching a full environmental study of the $3.8 billion Dakota Access pipeline's disputed crossing under a Missouri River reservoir in North Dakota.

U.S. District Judge James Boasberg denied Texas-based Energy Transfer Partners' request to stop the Corps from proceeding until he rules on whether the company already has the necessary permission to lay pipe under Lake Oahe, the water source for the Standing Rock Sioux tribe.

The Associated Press reports, “The study notice can be withdrawn if Boasberg were to eventually rule that ETP has permission for the crossing.”

Rob Port at correctly explains the president’s strategy:

At this point, which just days left in his last term in office, President Obama knows he cannot unilaterally stop the pipeline. So what this is about is setting the stage for more legal warfare against the project under Donald Trump. By initiating this process now, environmental extremist groups can argue in court that it would somehow be illegal for Trump to allow the project to be completed until it plays out.

Potentially, an environmental review could mean years of delay when all that’s left to finish the pipeline is drilling underneath Lake Oahe. The Associated Press reports, Energy Transfer Partners (ETP) “has said in court documents there is already oil in a portion of the pipeline leading up to the lake in anticipation of finishing the project.”

Gumming up the works for the next administration does not make for a “smooth and effective” transition.

So much has already been invested in a project that has already been approved by the Corps. In June 2016, the Corps signed off on an easement, allowing pipeline construction under the Missouri River. However, it didn't finalize it.

Now, President Obama’s political appointees have complicated things even more and put the agency in a bind, say pipeline supporters.

“It’s unfortunate that the outgoing administration would try to hamstring the professionals at the Army Corps of Engineers who worked diligently for years to ensure the Dakota Access Pipeline was sited and constructed in the environmentally and culturally sensitive manner,” said Craig Stevens, Midwest Alliance for Infrastructure Now (MAIN) Coalition spokesman.

A frustrating aspect to the Obama administration’s action is it runs counter to what the Corps did recently when it reissued its nationwide permit procedures. Matt Koch at the Institute for 21st Century Energy explains [emphasis mine]:

The Corps Nationwide Permit (NWP) procedures create a streamlined authorization process ("general permit") for construction projects deemed to have minimal environmental impacts to waterways, with the goal of protecting the environment while reducing administrative burdens and delays.

Highlighted by the Dakota Access pipeline protest, pipeline protestors and the anti-fossil energy "keep it in the ground" movement called on the Army Corps to abandon the long established NWP program and expand the Army Corps role in regulating oil and gas pipelines in their effort to slow and stop pipeline and other energy infrastructure projects.

Instead, the Army Corps is sticking with its process to review utility line and oil and gas pipeline construction projects “limited to regulating discharges of dredged or fill material into waters of the U.S. and structures or work in navigable waters of the U.S.” The Army Corps stated, “We do not have the authority to regulate the operation of oil and gas pipelines.”

But for this politically-charged project, Obama political appointees want the Corps to regulate an oil pipeline.

Apparently coherence gets tossed aside when you’re helping extreme, "keep it in the ground," anti-energy groups.

Hopefully under the new Trump administration, the Corps will issue all outstanding permits to allow this complicated legal struggle to come to a conclusion. And hopefully this beneficial, job-creating energy project will be allowed to be completed.

About the authors

Sean Hackbarth

Sean Hackbarth

Sean writes about public policies affecting businesses including energy, health care, and regulations. When not battling those making it harder for free enterprise to succeed, he raves about all things Wisconsin (his home state) and religiously follows the Green Bay Packers.

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