By Richard Epstein, Investor’s Business Daily, November 22, 2016
Right now a major energy and environmental fiasco is playing out over the completion of the Dakota Access Pipeline (DAPL). This 1172-mile pipeline, when completed, will move 470,000 barrels of oil per day from the production fields in the Bakken and Three Forks regions of North Dakota to refineries and terminals located in Patoka, Ill.
Originally, the case was a legal dispute which pitted the company building the pipeline and the Army Corps of Engineers against the Standing Rock Sioux Tribe (SRST) over the narrow, but important, legal question of whether the Army Corps and Dakota Access had complied with the provisions of the National Historic Preservation Act of 1966, which required them to consult with the tribes before a permit could be issued.
On Sept. 9, Judge James E. Boasberg, an Obama appointee in the District of Columbia, wrote an exhaustive opinion which essentially said that both the Army Corps and Dakota Access had participated fully in the process, which SRST sought to ignore or flout every inch of the way.
As a legal matter, the case should have been over once Dakota Access had obtained all the permits to allow it to complete the $3.7-billion project now more than 70% complete.
But, unfortunately, the legal disputes has quickly transformed into a political circus that goes far beyond its initial boundaries. Two major interconnected issues have surfaced.
The first is that the SRST and its allies have sought to turn the entire dispute into a re-examination of the entire history of the troubled relations between the United States government and the Native American tribes, on the perverse logic that any misdeeds that took place over a century ago justify a departure from the applicable legal rules governing the case, all of which were put in place to see that those tribal claims were honored.
At this point, large groups of protesters have trespassed on public and private lands in their effort to block, often by force and violence, the completion of the pipeline, so that tensions have reached the boiling point, with over 411 arrests in the past three months.