Army Corps of Engineers defers Dakota Access decision for more talks

The US Army Corps of Engineers announced that it completed its study of the Dakota Access crude oil pipeline project and will conduct further discussions and analysis before reaching a decision on whether to grant an easement for the pipeline to cross Lake Oahe in North Dakota near Standing Sioux Indian tribal land.

“While these discussions are ongoing, construction on or under [ACE] land bordering Lake Oahe cannot occur because the Army has not made a final decision,” ACE said.

Oil and gas industry associations and other business groups immediately criticized the move. “It defies logic that the Obama administration would ignore the rule of law by unilaterally delaying this critical infrastructure that would create American jobs and benefit American consumers,” American Petroleum Institute Midstream Group Director Robin Rorick stated.

Association of Oil Pipelines Pres. Andrew J. Black separately observed, “This administration continues to astonish after admitting previous Dakota Access pipeline decisions were legal, which include the environmental and cultural finding of no significant impact, they are still refusing to provide final approval for the project.”

National Association of Manufacturers Pres. Jay Timmons, meanwhile, said, “Americans demanded change last week. Disregard for the rule of law and bad decisions from Washington, like the one today, are why so many have been frustrated and sought change.”

The US Departments of Justice, Interior, and the Army jointly blocked construction of part of the proposed 1,172-mile, 30-in. pipeline from the Bakken and Three Forks production areas in North Dakota to Patoka, Ill., and major refining markets beyond on Sept. 9 after a federal district judge in Washington rejected the Indian tribe’s request for a preliminary injunction (OGJ Online, Sept. 12, 2016).

Protests by tribal members, environmental organizations, and other groups and individuals escalated. Officials from the American Fuel & Petrochemical Manufacturers, AOPL, and the Consumer Energy Alliance expressed concern on Oct. 11 after protesters broke into facilities near the Canadian border and elsewhere and tried to close pipeline valves manually (OGJ Online, Oct. 17, 2016).

Reasons for more talks

“The Army has determined that additional discussion and analysis are warranted in light of the history of the Great Sioux Nation’s dispossessions of lands, the importance of Lake Oahe to the [Standing Rock] tribe, our government-to-government relationship, and the statute governing easements through government property,” ACE said.

It invited the tribe to discuss potential conditions on an easement for the pipeline crossing that would reduce the risk of a spill or rupture, hasten detection and response to any possible spill, or otherwise enhance the protection of Lake Oahe and the tribe’s water supplies.

“This project went through an established, open and transparent permitting process where comments from numerous stakeholders were considered,” API’s Rorick said. “The administration’s actions to further delay this project with no legal justification contradict multiple court rulings; set a dangerous precedent for other infrastructure projects including roads, bridges and electricity transmission lines; and ignore calls to uphold the rule of law by the governors of North Dakota, South Dakota, and Iowa.”

Black said the Obama administration, after announcing an unprecedented halt to the approval process to conduct a review of previous agency actions, now has “concluded that [ACE’s] previous decisions comported with legal requirements,” but still questions whether it will grant the final easement for the project.

“Manufacturers in Florida, Louisiana, Texas, Missouri, Mississippi, Illinois, Oklahoma, Minnesota, Arkansas, and many other states [that] signed on to supply this project are now left hanging in continuing regulatory limbo and must come to grips with today’s wrongheaded decision,” NAM’s Timmons said. “We look forward to working with the next administration on access to our energy to fix this mess, as the president-elect has indicated that he values the importance of energy infrastructure.”

Contact Nick Snow at nicks@pennwell.com.

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