The Dakota Access Pipeline and the importance of upholding the rule of law
© Greg Nash

One of the positive results of this unprecedented 2016 Presidential election is the expressed sentiment from some leaders from both parties on the importance of upholding the rule of law, and furthermore, safeguarding it against politicians and others who would abuse or ignore it for political gain. Such an agreed upon fundamental principle is rare, and, unfortunately, not yet universally recognized and respected.

Take the increasingly rancorous and violent dispute over the Dakota Access pipeline for instance. It is a stark illustration of why adherence to upholding the rule of law is so vitally important to the proper functioning of our democracy.

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Over the course of two years, leaders of Energy Transfer Partners, the company that is building the 1,172-mile pipeline, were involved in nearly 560 meetings with local officials and community leaders to ensure the safest and least disruptive route for the pipeline. It was carefully routed almost entirely on private land. That was the result of the U.S. Army Corps of Engineers’ mandated review of each water crossing (just 3 percent of the project), and its possible impact on both historical locations and any artifacts thereon.

After this process and review, the Corps approved all the necessary permits and approvals that were required for the waterway crossings. The Corps strictly adhered to  multiple federal laws and regulations, including the Clean Water Act, the Rivers and Harbors Act, and the National Historic Preservation Act.

When construction was nearly halfway finished, one Native American tribe, the Standing Rock Sioux, and some anti-pipeline protesters and other activists, came out to oppose the project. They alleged that the Corps had failed to consult and meet with tribal leaders as required by federal law. They demanded that construction on the entire pipeline be stopped.

But the facts belie these claims. The Corps held nearly 390 meetings with 55 various tribes. In fact, the Corps notified the Standing Rock Sioux tribe of the pipeline permit application on numerous occasions in mid to late 2014, and subsequently asked dozens of times for meetings with the tribe to discuss the details.

But the Standing Rock Sioux tribe refused every time. When a meeting was finally set up in October, 2014 (after five offers and tribe rejections in September alone), the tribe ended the meeting before the Corps had even arrived! At the November meeting, discussion of the pipeline was pulled from the tribe’s agenda and postponed yet again. This classic “stonewall” by the tribe lasted for a year and a half!

The Standing Rock Sioux tribe then sued in federal court to halt construction and lost. The tribe appealed that decision, and again lost before a three-judge panel of the U.S. Court of Appeals, which ruled the pipeline was properly and legally approved and found no legal basis to stop construction.

Unable to get its desired result in court, protesters turned to some members of Congress to urge the Obama administration to ignore the law and halt construction of the pipeline through Executive action. President Obama not only bowed to the pressure from those members and the activists opposing the pipeline, he said that his administration was looking at ways to reroute the Dakota Access Pipeline to accommodate the concerns of “Native Americans”, i.e., the Standing Rock Sioux tribe. The result? The Corps recently announced it was going to re-open the examination.

This extraordinary development and Presidential intervention has alarmed developers, legal experts, and court scholars who know the importance of upholding the rule of law, and see this action as directly flaunting that sacred principle.

The only result that will appease the protesters is bringing the pipeline construction to a grinding halt through “any means necessary”. These protests are violent and dangerous, in violation of countless laws, and designed to influence government policy by intimidation and coercion - all of this, by the way, is in the definition of domestic terrorism as outlined in the U.S.A. PATRIOT Act.

Maybe the protestors should ask the tribal leaders what it is they’re really after. According to some reports, the tribe wouldn’t be protesting the pipeline so vehemently if they had received a share of the oil being shipped through it. So is this a principled stand, or the result of the tribe not getting the payout they felt they were due? 

At a time when top leaders in both political parties are saying the system is rigged, the Obama administration ought to be extra sensitive to the appearance of impropriety and political favoritism. The only fair and just option is to let construction of the Dakota Access pipeline move forward. Any attempt by the administration and certain Members of Congress to intervene on behalf of a favored constituency will only further undermine Americans’ faith in our government, and do damage to the primacy of the rule of law.

Hon. Christopher D. Coursen spent 3 years working as Republican Majority Counsel for the Senate Commerce Committee, and Chief Counsel of the Communications Subcommittee, and currently is the Pres. & CEO of the Washington DC government consulting firm, The Status Group.


The views expressed by authors are their own and not the views of The Hill.