Obama’s Dakota Pipeline Decision Creates A ‘Serious Moral Hazard’

REUTERS/Stephanie Keith

Daily Caller News Foundation logo
Michael Bastasch Contributor
Font Size:

Legal experts say the Obama administration’s decision to block the Dakota Access oil pipeline Sunday creates a “serious moral hazard” allowing activists to shut down projects that have already been approved.

New York University law school professor Richard Epstein said the U.S. Army Corps of Engineers’ decision to not grant the pipeline an easement to cross under a man-made lake a “serious moral hazard.”

Epstein said the Corps is basically arguing it can revoke a previously approved easement in the face of public pressure. That has huge legal implications for how federal agencies handle future projects.

“People are going to seriously ramp up opposition to stop projects,” Epstein, who is a legal adviser to the Midwest Alliance for Infrastructure NOW (MAIN) Coalition, told The Daily Caller News Foundation. The MAIN Coalition is a group of businesses and unions that would benefit from the pipeline’s approval.

The Corps announced over the weekend it would not grant the Dakota Access Pipeline (DAPL) an easement it needs to dig under Lake Oahe, which is on federal lands. The easement is necessary to complete the last 1,100 feet or so of the pipeline project.

The decision comes after months of protests led by Standing Rock Sioux tribal members and environmental activists who say DAPL could impact sacred sites and would cross a river upstream of where they get their drinking water.

The Corps initially approved the pipeline in July 2016 after an exhaustive environmental review, which the Standing Rock Sioux refused to take part in despite repeated attempts to get their input.

This is truly unprecedented,” Epstein said. “I’ve never seen it. Nobody has seen it.”

Environmentalists and tribal members cheered the Obama administration’s move to block DAPL and conduct further environmental reviews of the project. The Corps’ announcement may be short-lived since President-elect Donald Trump has come out in support of DAPL and will take office next month.

“This appears to be a political decision since the professional environmental employees at the Army Corps had already signed off on the project,” Anthony Caso, a law professor at Chapman University, told TheDCNF.

“I imagine we will see similar actions over the next few weeks,” Caso said. “The president had promised to rule by decree (using his pen and his phone), so this is really no surprise. It also is not in the least bit final.”

The $3.8 billion, 1,172-mile DAPL made national news earlier this year after hundreds of American Indians and environmentalists converged on the project’s construction site near the Standing Rock Sioux reservation in North Dakota.

DAPL does not cross tribal land, but crosses under Lake Oahe, which the Standing Rock Sioux say is sacred to them. The tribe also claims the pipeline could harm their drinking water.

The Standing Rock Sioux filed suit against the Corps, trying to get them to order pipeline builder Energy Transfer Partners to halt DAPL. Federal Judge James Boasberg denied the tribe’s request in a lengthy opinion that highlighted how the Corps already went through all the appropriate processes to approve DAPL.

Boasberg’s decision was quickly countered by the Departments of Justice and Interior. Federal officials ordered a stop to all construction on federal lands around Lake Oahe. President Obama weighed in on the pipeline in September, telling protesters they were “making your voices heard.”

Obama also said the Corps was looking at alternate routes for the pipeline — before the Corps actually said it would be doing so.

In November, the Corps delayed its decision of whether or not to issue the easement across government land DAPL builders needed to complete the project.

Protesters have been involved in tense stand-offs with security and police over the last few months, many of which of have been violent and resulted in dozens of arrests by local law enforcement.

Now, DAPL can’t move forward until the Corps completes a more thorough review of the project, angering pipeline proponents.

“This was clearly the planned outcome after the opinion by Judge Boasberg,” Epstein said. “This is exactly the same strategy that was used in respect to the Keystone pipeline.”

Follow Michael on Facebook and Twitter

Content created by The Daily Caller News Foundation is available without charge to any eligible news publisher that can provide a large audience. For licensing opportunities of our original content, please contact