US Army denies Dakota Access crude oil pipeline’s Lake Oahe easement

The US Department of the Army will not approve an easement that would allow the proposed Dakota Access crude oil pipeline to cross under Lake Oahe in North Dakota, Army Asst. Sec. for Civil Works Jo-Ellen Darcy announced on Dec. 4. American Petroleum Institute Pres. Jack N. Gerard immediately called on President-elect Donald J. Trump to approve the project when he takes office in January.

Darcy said she based her decision on a need to explore alternate routes for the 1,172-mile project’s crossing beneath the reservoir, which is managed by the Army Corps of Engineers, in North Dakota. Her office previously announced that it would delay the easement decision to allow for discussions with the Standing Rock Sioux Tribe, whose reservation lies ½ mile south of the proposed crossing (OGJ Online, Nov. 15, 2016).

Tribal officials have expressed repeated concerns over the risk that a pipeline rupture or spill could damage its water supply and treaty rights, Darcy said. Energy Transfer Partners, the project’s sponsor, sued in federal court to complete the project on Nov. 15 (OGJ Online, Nov. 16, 2016).

“Although we have had continuing discussion and exchanges of new information with the Standing Rock Sioux and Dakota Access, it’s clear that there’s more work to do,” Darcy said. “The best way to complete that work responsibly and expeditiously is to explore alternate routes for the pipeline crossing.” Consideration of alternatives would best be accomplished through an Environmental Impact Statement with full public input and analysis, she said.

Gerard said, “I am troubled, though not surprised, that the Obama administration is again putting politics over sound public policy and ignoring the rule of law. The Dakota Access pipeline went through an open, transparent, and established permitting process that was upheld twice by the courts, making this decision even more baffling. In just over one month, a new president and new administration can stand up for American consumers and American workers by approving this critical project. Following the rule of law in the regulatory process is critical for this and other infrastructure projects including roads, bridges, and electricity transmission lines.”

‘Played by the rules’

The project’s sponsors—Energy Transfer Partners in Dallas and Sunoco Logistics Partners in Newtown Square, Pa.—said in a jointly issued statement Dec. 4 that the decision was purely political.

“For more than 3 years now, Dakota Access Pipeline has done nothing but play by the rules,” they said. “[ACE] agrees, and has said so publicly and in federal court filings. [Its] review process and its decisions have been ratified by two federal courts. [It] confirmed this again today when it stated its ‘policy decision’ does ‘not alter the Army’s position that the Corps’ prior reviews and actions have comported with legal requirements.’”

EDP and SLP said that despite consistently stating that the permit for crossing the Missouri River at Lake Oahe, which was granted in July, comported with all legal requirements, including the use of an environmental assessment rather than an environmental impact statement, ACE now seeks to engage in additional review and analysis of alternative locations for the pipeline.

“The White House’s directive today to the Corps for further delay is just the latest in a series of overt and transparent political actions by an administration which has abandoned the rule of law in favor of currying favor with a narrow and extreme political constituency,” the sponsors said.

US Sen. Heidi Heitkamp (D-ND) also condemned the move. “This administration’s delay in taking action—after I’ve pushed the White House, Army Corps, and other federal agencies for months to make a decision—means that today’s move doesn’t actually bring finality to the project. The pipeline still remains in limbo,” she said on Dec. 4.

Heitkamp said the incoming administration already has stated its support for the project, and the courts have already stated twice that it appeared the Corps followed the required process in considering the permit. “For the next month and a half, nothing about this project will change,” she stated.

“For the immediate future, the safety of residents, protesters, law enforcement, and workers remains my top priority as it should for everyone involved,” Heitkamp said. “As some of the protesters have become increasingly violent and unlawful, and as North Dakota’s winter has already arrived—with a blizzard raging last week through the area where protesters are located—I’m hoping now that protesters will act responsibly to avoid endangering their health and safety, and move off of the Corps land north of the Cannonball River.”

Contact Nick Snow at nicks@pennwell.com.

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