Moving the Goalposts on the Dakota Access Pipeline

Mark Green
Posted December 6, 2016

In the weeks since the Dakota Access Pipeline morphed from a lawfully approved energy infrastructure project into a cause celebre for celebrities and out-of-town, out-of-the-mainstream activists – precisely the constituency that has had the Obama administration’s ear the past eight years – we’ve discussed some of the hazards posed the administration’s unwarranted actions to delay the project. These included risks to the rule of law, to besieged construction workers and residents, and to the greater public good, which would be served by finished the 1,172-mile pipeline.

With the administration now claiming that Dakota Access’ already-completed environmental review must start again from square one, a move-the-goalposts campaign is plain for all to see – and with it an assault on basic fairness that could have dire consequences for our country for years to come.

Historically, unfairness has not set well with the American people. In large part our liberties and institutions are founded on the principle that there’s one set of rules for all and justice for all who follow them. That basic compact is being trashed by the administration’s politically motivated intervention in North Dakota. Rob Port, author of the North Dakota-based Say Anything Blog, has covered the Dakota Access odyssey from the beginning:

[T]his is a grave injustice. Not only from a legal stand point – this pipeline company invested billions into following an exacting regulatory process only to see the goal posts moved on them at the last moment – but a moral stand point. The message this sends the enemies of energy infrastructure is that if they cause enough mayhem, if they light enough fires and pick enough fights, they can get their way.

More from Port:

The reason why democratic societies tend to be more peaceful than the alternatives is because of the rule of laws which reflect the will of the people. Our society has established numerous avenues for creating and/or reforming laws, and once those laws are written we expect that they be enforced equally for all citizens. In this case the legal arguments in favor of the Dakota Access Pipeline and its current route have been presented and upheld in court multiple times. So when President Obama steps in, siding with a bullying and violent protest movement, and sets aside the rulings of state and federal regulators which have been upheld repeatedly by the courts, many if not most Americans see an injustice.

Unfortunately, Dakota Access is becoming synonymous with an unfairness that undermines established rules and lawful processes. With that come potentially dangerous outcomes: encouraging the forces of discord whose strategy is creating an atmosphere so toxic that the rule of law is cast aside and discouraging investment in all kinds of infrastructure that the country needs. Terry O’Sullivan, general president of the Laborers’ International Union of North America:

“Blocking the final portion of construction of the Dakota Access Pipeline after it is 93 percent complete and fully reviewed is a short-sighted, gutless, and irresponsible decision. It only serves to prolong the conflict that is dividing communities in North Dakota … The Administration’s decision to step in … invites more chaos and sets a dangerous precedent that threatens every type of future development and infrastructure investment. This President is appeasing environmental extremists at the expense of sound energy policy.”

Jay Timmons, president CEO of the National Association of Manufacturers:

“If a project that has involved all relevant stakeholders and followed both the letter and spirit of the law at every step of this approval process can be derailed, what signal does that send to others considering building new energy infrastructure in this country?”     

Quick answer: A bad signal indeed, and one that should concern every American whose lifestyle depends on ample, reliable sources of fuels and other products, as well as affordable household energy – which is to say, virtually all of us. API President and CEO Jack Gerard:

“Modernizing our nation’s energy infrastructure benefits American consumers by keeping energy affordable, creating well-paying American jobs, and improving our environment. I am troubled, though not surprised, that the Obama administration is again putting politics over sound public policy and ignoring the rule of law. Following the rule of law in the regulatory process is critical for this and other infrastructure projects including roads, bridges, and electricity transmission lines.”

The reality is that what has happened to the Dakota Access Pipeline and its builders – who’ve acted in good faith and according to the rules throughout this process – threatens lawful progress in this country on projects, energy and otherwise, that could harm our economy, security and standard of living. It’s a big price to pay for a narrow political agenda.