The U.S. District Court in Washington, D.C. recently ruled the U.S. Army Corps of Engineers must conduct a full Environmental Impact Statement (EIS) for the Dakota Access Pipeline (DAPL) despite having already produced a 1,261 page Environmental Assessment (EA) in July 2016, reporting a “Finding of No Significant Impact” or “FONSI.”
The Army Corps’ environmental reviews under the National Environmental Policy Act (NEPA) consider many different factors in the natural, economic, and social environments surrounding a proposed project. An EA, which takes about a year to complete, assesses the need for the project, alternatives, and the environmental impacts of the proposed actions. If a project has a “Finding of No Significant Impact, an EIS is not required, which was the case of the Dakota Access Pipeline. An EIS is only completed if it is determined that the impact is potentially significant. EISs have an average completion time of 4.5 years, and require review of EA findings and all possible outcomes for every potential scenario.
Now, the court will consider whether the pipeline’s operations should be suspended pending the completion of the EIS, which will likely take years. The decision to pursue needless litigation from known fossil fuel opponents who have one objective in mind — to shut down the pipeline, which has safely operated for nearly three years — represents a dangerous blow to American energy infrastructure when it is more important than ever.
The subsequent considerations for a halt to operations of a state-of-the-art pipeline that received layers of approvals from state and federal regulators brings into question at what point is review enough?
Dakota Access, and its operator Energy Transfer, have complied with all the necessary permits, contracts, and conditions set forth through the multitude of approvals the project went through. Now another review will set out to show what we already know — the pipeline has and is safely operating and considered all the necessary conditions to warrant its approval.
Clearance to operate was granted on the merits of the pipeline’s technology, route, integrity, and oversight; those factors are not impacted by a duplicative review. Further, a halt to operations would likely spur more litigation to many other companies and contracts that affect the entire supply chain. The repercussions of such a ruling could create a ripple effect that would be disastrous to not only the industry, but the entire economy.
Is it fair for a court to mandate a situation that could directly impede a company from fulfilling its obligations agreed upon years prior? Breach of contract would be just the tip of the iceberg in court.
With energy markets roiling, the last thing these companies need is for regulatory guardrails to be undermined and new, unexpected, and often frivolous challenges to arise with ease despite thorough and safe development and review.
An added harmful effect of restricting pipeline operations may be reverting progress made towards achieving greater energy security. The growth of the American energy industry has reduced our reliance on foreign energy sources while increasing our energy exports. In fact, the U.S. Energy Information Administration recently reported energy exports from the United States reached an all-time high in 2019 — the first time in 67 years that annual U.S. gross energy exports exceeded U.S. gross energy imports.
Infrastructure projects like pipelines have been crucial to achieving that independence, which insulates the U.S. economy against foreign oil price manipulation and lessens the geopolitical influence of hostile powers. This has material benefits in foreign policy and across all sectors of the economy. Stunting the expansion of energy infrastructure now would jeopardize America’s position in the global energy race and, by extension, our national security. Adversaries of the energy production industry know this, and are no doubt pleased by the recent ruling. One certain lesson from the current coronavirus pandemic is the vulnerability of global supply chains. The United States has achieved Herculean gains in energy independence. It would be more than ironic to reverse those gains now. It would be tragic.
There is no question the regulatory process is essential to ensuring the safety and feasibility of infrastructure development. However, resurrecting that process years after conclusion for political reasons waged by fossil fuel opponents is a costly aberration of justice with direct and negative national security implications. The Dakota Access Pipeline, despite artificial controversy, has succeeded in safely bolstering our economy and energy security. Those gains are now at risk of being undone, and the fallout won’t be limited to a single company. The current case surrounding DAPL will set a precedent for all future energy infrastructure projects, and the wrong decision could damage a critical domestic industry and weaken our international positioning.
It was already a step backward to order the full EIS, but it is even more crucial that the subsequent ruling on whether to suspend DAPL’s operation does not further subordinate good policy to bad politics. Don’t make DAPL a bellwether to an energy sector beholden to gavels and extremists.
James “Spider” Marks is a retired U.S. Army major general and strategic advisor to the GAIN Coalition — Grow America’s Infrastructure Now.