Last month a federal appeals court upheld a ruling that found the U.S. Army Corps of Engineers fell short in an environmental assessment that provided a construction easement for the Dakota Access Pipeline in 2016. The decision immediately reignited calls for the pipeline to be shut down, with activists urging President Biden to take executive action to shutter its operation and stop the flow of oil. But before protesters dust off their bullhorns and pitch camp on the Standing Rock Sioux Reservation, it is important to consider the facts and what, exactly, the ruling means.
The District of Columbia Circuit Court of Appeals reaffirmed a lower court’s ruling that the Corps should have performed an in-depth environmental impact assessment rather than only a narrower environmental review for a 1,000-foot section of pipe buried 100 feet under Lake Oahe. The decision does not question the veracity of the Corps’ work on the entirety of the pipeline and its various federal land and water crossings—a rigorous two-year process that produced a “Finding of No Significant Impact.” Instead, it says that the Corps did not complete a necessary study for that specific section, representing a fraction of the overall project, and must now do so.
Notably, the appellate court reiterated its earlier opinion that the Dakota Access Pipeline should be allowed to remain operational while the Corps’ additional environmental review is conducted. Effectively, that substantiates the Corps’ due diligence on the project. It’s not that the work was inadequate, nor the decision incorrect—only that a piece was missing. And it is now incumbent on the Corps to go back and complete that work, which has already begun.
The Dakota Access Pipeline has operated safely now for nearly four years. Each day it moves more than half a million barrels of oil, reducing reliance on rail and truck transportation, which are more prone to accidents with a significantly greater environmental impact. That in and of itself is a validation of the Corps’ analysis, and it speaks to the state-of-the-art technologies and safety protocols that make pipelines the preferred form of energy transportation.
The Corps carefully and thoroughly considered the impacts of the Dakota Access Pipeline. The process resulted in the pipeline receiving full permitting from appropriate local, state and federal authorities. When challenged, multiple courts confirmed that the pipeline and its developer, Energy Transfer, complied with rules and protections put in place to ensure the safety of surrounding lands, waters and communities.
At the courts’ direction, the Corps will now complete its environmental impact statement for the 1,000-foot river crossing easement. It is paramount that politics not be part of the process, and that the expert career professionals at the Corps be able to focus on science and fact, devoid of any political influence.
The Army Corps of Engineers is a nonpartisan agency tasked with ensuring public safety around critical infrastructure development. Their work is informed by evidence, not political bias, and should continue free and clear of emotional opinion campaigns that seek to turn public attitudes rather than get to the facts.
President Biden has an opportunity to reinforce confidence in the U.S. regulatory process by following the courts’ direction and allowing the hard-working men and women of the Army Corps of Engineers to do their job. That will send a clear and much-needed message that the process works, which is not only what the public and the professionals responsible for ensuring the safety of our communities need to hear—but what those investing in American infrastructure need to hear, as well.
Opponents have made a tactic of raising concern about whether our regulatory process is appropriately rigorous, and they have made hay of rulings like the Circuit Court’s to sow doubt. Concerned citizens ought to be more worried about the effects of that kind of rabble-rousing, which has frequently succeeded in moving the goalposts on critical infrastructure projects. Those efforts undermine the regulatory process, which ultimately puts our communities and the environment at greater risk.
The courts’ ruling on the Dakota Access Pipeline demonstrates that the system works. Now, we need to trust the integrity of those who are guided by facts and science to complete their assessment which will reaffirm the safety of this important piece of infrastructure.
