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Dakota Access Pipeline Update: Judge orders redo of environmental review

Dakota Access Pipeline Update: Judge orders redo of environmental review

Will DAP be the next victim of #Resist?

President Trump has faced many opponents during his quest for the White House and the early days of his administration. However, no group seems to be as powerful as the judiciary when it comes to gutting his policies.

Legal Insurrection readers will recall that one of Trump’s first acts as President was signing the executive order to move forward with the Dakota Access and Keystone Pipelines. The good news is that the Dakota Access Pipeline began shipping oil on June 1.

The pipeline’s developer, Energy Transfer Partners, successfully completed building the $3.8 billion pipeline in mid-May. The pipeline, which stretches 1,172 miles long, is expected to carry 570,000 barrels of oil a day. The Dakota Pipeline has partnered with the Illinois-to-Texas Energy Transfer Crude Oil Pipeline, and already has a commitment of 520,000 barrels per day from shippers.

The bad news is that a judge has issued an order that could impede this free market victory over eco-activist hysteria.

On Wednesday, however, a federal judge breathed life back into the fight against Dakota Access. In a 91-page decision, US district judge James Boasberg ruled that the corps failed to take into account the impacts that a spill underneath the Missouri river could have on “fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial”

The judge’s ruling is laughable, given the dumping ground the Dakota Access Pipeline protest site had become. The leftist demonstrators were actually evicted because they were polluting the environment, and the cost of the subsequent site cleanup was over $1 Million. The protesters even abandoned a dozen dogs at the site.

Pipeline officials seem undeterred by the ruling, especially as the judge’s order won’t stop the pipeline from shipping oil 1,200 miles to Illinois.

The “handful” of the pipeline opponent’s claims that remain “do nothing to impact the ongoing operation of the pipeline nor do they undermine the work of the more than 8,000 individuals across the four states who built it,” said Craig Stevens, spokesman for the Grow America’s Infrastructure Now (GAIN) Coalition, representing backers of the project and infrastructure development.

“The Dakota Access Pipeline remains one of the safest – if not the safest – pipeline ever constructed,” Stevens said. “And while we have little doubt that the [Army] Corps will ultimately be successful in satisfying the court’s concerns, tonight’s decision continues the public saga of the project and jeopardizes ongoing infrastructure investment.”

Boasberg has asked the Army Corps of Engineers to provide greater explanation for its decision to issue the permits in an upcoming status. At that time, the opposing tribe (Standing Rock Sioux) will also present its arguments, including a request to shut down the pipeline immediately.

According to his biography, Boasberg was born in San Francisco, went to Yale Law School, and was appointed to his position by Obama. In 2012, he was the one who ruled that the public had no right to view government photos of a deceased Osama Bin Laden. I am concerned that the pipeline will be the next victim of the #Resist movement.

I would simply like to point out that if the judge were truly concerned about spills, he might focus on the vandals who damaged the pipeline in March.

As if all of this judicial activism weren’t enough, the pipeline will undergo a regulatory review this summer.

The AP reported that “North Dakota’s Public Service Commission is looking into whether Texas-based Energy Transfer Partners removed too many trees and shrubs, and whether it improperly reported the discovery of Native American artifacts.”

ETP said it has not intentionally done anything wrong, but the company could face tens of thousands in fines if regulators decide otherwise.

Let’s hope someone figures out how to stop the flow of judicial activism and needless regulatory restrictions one day.


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If the House had any real leadership, they would start impeaching these activist judges.

Boasberg sits in the District of Columbia, DC, nowhere near this pipeline.

Until we eviscerate the ability of district judges to apply rulings outside their districts, there’s really no constraint on one nutcase or activist district judge being more powerful than the President on all sorts of issues.

It’s only been a “gentleman’s agreement” that’s stopped this nonsense so far, and all such agreements are off the table now because of the “resistance”. We have to fix this weakness in our system.

The only way to convince the US Congress to act in stopping this runaway legislation from the bench is for the Executive Branch make the consequences of continuing inaction worse that the potential consequences of action.

It is past time for the Andrew Jackson moment.

This order looks ripe for a presidential “Dear Judge, go jump in the lake” letter.

It might make sense and be within his authority to order the Corps to consider the potential impact of a spill on fishing and hunting rights, to which an appropriate Corps’s response would be “OK, we’ve considered it and don’t think it a problem”.

But it is no more within his authority to order the Corps to consider the potential impact of a spill on “environmental justice” than it would be for him to order it to consider the impact on “slithy toves”. Though both of these phrases are constructed correctly according to the grammatical rules of the English language, neither of them has any meaning in that language. They look as if they might mean something, but they don’t. Therefore it is physically impossible for a spill to have any impact on them, or for the Corps to consider the likelihood or severity of such an impact.

Nor is it within his authority to order the Corps to consider “the degree to which the pipeline’s effects are likely to be highly controversial”. That degree, whatever it may be, is none of the Corps’s business, and certainly none of the judge’s. The Corps not only need not but ought not to give it any weight whatsoever, and the president ought to explicitly and openly order it not to do so, with a Cc to this uppity judge.

    MattMusson in reply to Milhouse. | June 19, 2017 at 12:08 pm

    On the other hand, this pipeline could use a larger Environmental Bond in case there is a spill. So, upping the Bond would seem like a good compromise to me.

      Tom Servo in reply to MattMusson. | June 19, 2017 at 1:43 pm

      Larger than what is required of other pipelines already operating in the same area? Because there are plenty, that’s what keeps getting hidden in this entire issue.

      The act of requiring excessive bonds is in effect nothing but a demand for ransom, and is meant to inhibit and eventually prohibit otherwise ordinary economic development.

      artichoke in reply to MattMusson. | June 20, 2017 at 5:52 pm

      “Millions for defense, not one cent for tribute!” In current dollars, that would read “Billions”.

      No increase in bond.

Supposedly, Judge Boasberg has not been a constant opponent of the Dakota Access pipeline. From

Still, while Boasberg’s decision was viewed as a positive to tribal leaders and environmentalists, he has not always ruled favorably for their cause.

In March, he denied a request by the Cheyenne River Sioux tribe to halt construction on grounds that the pipeline violated its members’ religious freedom. The tribe had claimed that the pipeline was “a terrible Black Snake prophesied to come into the Lakota homeland and cause destruction” by desecrating water used in religious ceremonies.

The full text of Judge Boasberg’s latest ruling can be found here:

I was initially concerned about Judge Boasberg’s comment about effects being “highly controversial”:

Although the Corps substantially complied with NEPA in many areas, the Court agrees that it did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial.

I thought Judge Boasberg was willing to cow-tow to a “heckler’s veto.”

But, it turns out, he appears to be following the Code of Federal Regulations that specifically uses the phrase “highly controversial. See, 40 CFR 1508.27(b):

Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following should be considered in evaluating intensity:
* * *
(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial.

And, Judge Boasberg points out that “highly controversial” does not refer to disputes over policy. From pages 31-32 of his ruling:

Such controversy is not measured by newsworthiness; instead, according to the Court of Appeals, “The term ‘controversial’ refers to cases where a substantial dispute exists as to the size, nature, or effect of the major federal action rather than to the existence of opposition to a use.” Town of Cave Creek, Arizona v. FAA, 325 F.3d 320, 331 (D.C. Cir. 2003) (quoting Found. for N. Am. Wild Sheep v. Dep’t of Agric., 681 F.2d 1172, 1182 (9th Cir. 1982)). Despite that explanation, however, as other courts in this district have observed, “Just what constitutes the type of ‘controversy’ that requires a full EIS is not entirely clear.” Nat’l Parks Conservation Ass’n v. United States, 177 F. Supp. 3d 1, 33 (D.D.C. 2016) (quoting Nat’l Wildlife Fed’n v. Norton, 332 F. Supp. 2d 170, 184 (D.D.C. 2004)). At a minimum, “something more is required besides the fact that some people may be highly agitated and be willing to go to court over the matter.” Id. (quoting Fund for Animals v. Frizzell, 530 F.2d 982, 988 n.15 (D.C. Cir. 1975)).

“Many courts have found ‘something more’ to be scientific or other evidence that reveals flaws in the methods or data relied upon by the agency in reaching its conclusions.” Id. (citing Nat’l Parks & Conservation Assoc. v. Babbitt, 241 F.3d 722, 736-37 (9th Cir. 2001) (holding agency action was highly controversial because “comments urg[ing] that the EA’s analysis was incomplete, and the mitigation uncertain, . . . cast substantial doubt on the adequacy of the Parks Service’s methodology and data,” and thus the dispute went “beyond a disagreement of qualified experts over the ‘reasoned conclusions’ as to what the data reveal[ed]”); Nat’l Wildlife Fed’n, 332 F. Supp. 2d at 185 (“Such a controversy exists where the Corps is presented with scientific evidence specifically evaluating the environmental effects of the proposed project or calling into question the adequacy of the EA.”); Fund for Animals v. Norton, 281 F. Supp. 2d 209, 235 (D.D.C. 2003) (“While plaintiffs have identified serious gaps in defendants’ assessment of the local effects of the proposed action, they do not appear to have identified any scientific controversy per se as to the extent of the effects.”); Sierra Club v. Van Antwerp, 719 F. Supp. 2d 58, 67-68 (D.D.C. 2010) (“While declarations were submitted to the Corps from numerous experts who claimed that [the development project] will have significant adverse impacts on Cypress Creek and its wetlands, these declarations alone fail to rise to the level of ‘controversy’ under NEPA.”), aff’d in part, rev’d in part on other grounds, 661 F.3d 1147 (D.C. Cir. 2011), as amended (Jan. 30, 2012)); but cf. Humane Soc. of U.S. v. Dep’t of Commerce, 432 F. Supp. 2d 4, 19–20 (D.D.C. 2006) (finding agencies’ decision not to prepare EIS highly controversial based on comments from plaintiff and other agencies indicating disagreement with agencies’ conclusions).

    Milhouse in reply to Ira. | June 19, 2017 at 6:39 pm

    Fair enough, if “controversial” in this context means a substantive dispute on the facts, then it’s a legitimate consideration to take into account, but only if such a dispute really exists. Where is it, in this case? What are these “highly controversial” factual claims, that the Corps must evaluate skeptically?

I agree with Milhouse’s concern about the “environmental justice” mantra in Judge Boasberg’s ruling.

However, it turns out that, as Judge Boasberg points out at page 47 of his ruling, the requirement that “environmental justice” be taken into consideration is mandated by a presidential execuitve order going back to the Clinton administration:

A 1994 Executive Order requires that, “[t]o the greatest extent practicable and permitted by law,” federal agencies “shall make achieving environmental justice part of [their] mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of [their] programs, policies, and activities on minority populations and low-income populations.” Exec. Order 12,898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 Fed. Reg. 7629 (Feb. 11, 1994), § 1-101. The Order expressly states that it does not create a private right to judicial review, id. § 6-609, but the D.C. Circuit has permitted challenges to environmental- justice analyses under NEPA and the APA. See Communities Against Runway Expansion, Inc. v. F.A.A., 355 F.3d 678, 689 (D.C. Cir. 2004) (“The [agency] exercised its discretion to include the environmental justice analysis in its NEPA evaluation, and that analysis therefore is properly subject to arbitrary and capricious review under the APA.”).

    Milhouse in reply to Ira. | June 19, 2017 at 1:28 pm

    the requirement that “environmental justice” be taken into consideration is mandated by a presidential execuitve order going back to the Clinton administration:

    Then surely it’s overridden by Trump’s order to the Corps to expedite this project’s permit.

    Milhouse in reply to Ira. | June 19, 2017 at 1:30 pm

    also, executive order or not, “environmental justice” has no more meaning than “slithy toves”, so it’s impossible to make achieving it a goal.

Be careful what you wish for: there is a strong element of what used to be my Democratic Party that wants to burn The System down. They have been playing “F*ck the System” (their term, not mine) since I was in high school. We are seeing the natural fruits of their nonsense, now. We just had a United States Presidential election campaign that used rent-a-rioters in an effort to blame the other side for violence. It was their written policy to do this.

That is breaking the American social compact, and that way lies destruction of our Republic. Once it becomes acceptable to, at minimum, be careless of the lives of Americans simply due to their proximity to a political rally, any unethical or vicious act becomes possible. To me, the clearest evidence that Seth Rich was murdered is the use of rent-a-rioters by both the DNC and Hillary Campaign. The line between soliciting personal injury and murder is not apparent to me.

I agree that we have seen breathtaking lawlessness on the part of some of our district court judges. I prefer that we let these issues play out in the system as designed, rather than wrecking the system, or even adjusting it in the heat of the moment.

    artichoke in reply to Valerie. | June 20, 2017 at 6:01 pm

    I am sorry, but the system is already broken because these events you speak of are largely immune from adequate resolution within the system as it really is.

    I’ll give Jeff Sessions a chance to prove me wrong though. As long as Sessions is in, the system is as good as it can be.

I am not going to waste my time reading this decision. 91 pages to say that the COE did not adequately address the impact of an potential oil spill on hunting and fishing in the area? Really??? Sounds pretty bogus to me.

buckeyeminuteman | June 19, 2017 at 2:11 pm

The Rover pipeline is currently being dug across the entire state of Ohio; running from West Virginia, on through Michigan and into Canada. It crosses about a mile north of my house. I have not heard one peep about our water being poisoned or how landowners have to sell an easement to the pipeline company and that just isn’t fair. This whole thing with DAPL is political grandstanding and environmental activism cranked up to 11.