By Anthony Caso, The Hill, December 9, 2016
In the latest development on the Dakota Access Pipeline, the U.S. Army Corps of Engineers has announced that it will withhold the final easement under Lake Oahe needed to complete the project. This abrupt reversal of approval, given by the career environmental specialists, is deeply disturbing, particularly for the North Dakotans that will remain under threat of harm from protesters who will likely persist in the region for the foreseeable future. The action also sets a disconcerting precedent by an administration that appears willing to rewrite its own regulatory procedures to appease the protestors. The rule of law is the clear loser.
The Corps’ decision is likely the last that the Obama administration will issue in a situation that has been left in limbo since its statement in September calling for a “voluntary halt” in construction on a small portion of the Dakota Access Pipeline. This reversal, displaying a troubling capacity to capitulate to political pressures, comes months after the Corps granted the Dakota Access full approval to construct.
A decision in early October by the U.S. Court of Appeal for the D.C. Circuit upheld this approval, denying the Standing Rock Sioux Tribe’s motion for an injunction and dissolving the temporary injunction against construction activity on the project. According to the order, the Court found that “the Tribe has not carried its burden of persuasion” in demonstrating its case for an injunction.
Despite claims by the Standing Rock tribe and others, Dakota Access meticulously planned the route to avoid areas of historical and cultural importance. The company conducted archaeological surveys over the entire length of the pipeline route and modified the route to avoid “historic and cultural resources.” According to Judge Boasberg, the pipeline route was changed 140 times in North Dakota alone in order to avoid area with potential “cultural resources.”