Tribe Says Corps Lacks Authority to Stop DAPL Environmental Review

Mark Trahant

Cognitive scientist George Lakoff has described the process for Republican thinking as a set of assumptions built on the idea of a strict father.

He wrote in his classic book, “Don’t Think of an Elephant,”

The strict father model begins with a set of assumptions: The world is a dangerous place, and always will be, because there is evil out there in the world. The world is also difficult because it is competitive. There will always be winners and losers. There is an absolute right and an absolute wrong. Children are born bad, in the sense that they just want to do what feels good, not what is right. Therefore they have to be made good.

President Donald J. Trump is the strict father who runs his family — and in this case, the United States — on the model that all he needs to say to defend any action is “because I said so.” The president’s executive memorandum issued on Jan. 31 on Standing Rock is exhibit one.

“Today, the Acting Secretary of the Army Robert Speer informed us that he has directed the Army Corps of Engineers to proceed with the easement needed to complete the Dakota Access Pipeline,” Senator John Hoeven (R-N.D.) said in a news release that went on to say,

This will enable the company to complete the project, which can and will be built with the necessary safety features to protect the Standing Rock Sioux Tribe and others downstream. Building new energy infrastructure with the latest safeguards and technology is the safest and most environmentally sound way to move energy from where it is produced to where people need it.

Just like that. The Corps is supposed to walk away from a process already underway, the environmental impact statement and the public comment period that is open until Feb. 20. (The Army Corps announced on Feb. 7 that it would withdraw its environmental review and was approving the easement immediately. On Feb. 8, Trump declared: “As you know, I did the Dakota pipeline and nobody called up to complain,” prompting activists to document themselves calling to complain.)

This is now a test of the federal courts. Will that institution follow the order of the acting secretary, and the president of the United States, or will it insist on the conclusion of the environmental review that’s underway?

First: It’s interesting that the announcement came from a U.S. senator and not the agency itself.

The Federal Register, the government’s rule book and journal, published a plan for the review process on Jan. 18. Yes, there is a new administration, but that does not (or should not) change the rules. The notice, unlike the president’s memorandum, cites the statutory authority for moving forward. This is more than you want to read … but here goes:

This notice is published in accordance with sections 1503.1 and 1506.6 of the CEQ’s Regulations (40 CFR parts 1500-1508) implementing the procedural requirements of NEPA, as amended (42 U.S.C. 4321 et seq.), and the Army and Corps’ NEPA implementation policies (32 CFR part 651 and 33 CFR part 230), and exercises the authority delegated to the Assistant Secretary of the Army (Civil Works) by General Orders No. 2017-1, January 5, 2017.

Of course this action will also open a new round of litigation. That will be the test of the independence of the federal judiciary. Will federal judges tell the president no? Will litigation even be allowed (strange as those words sound)? The Trump administration and the government of North Dakota certainly hope not. That process takes too long in a world run by oil gazillionaires.

The Standing Rock Sioux Tribe released a statement on Jan. 31 that said:

The Army Corps lacks statutory authority to simply stop the EIS and issue the easement. The Corps must review the Presidential Memorandum, notify Congress, and actually grant the easement.We have not received formal notice that the EIS has been suspended or withdrawn. To abandon the EIS would amount to a wholly unexplained and arbitrary change based on the President’s personal views and, potentially, personal investments. We stand ready to fight this battle against corporate interest superseding government procedure and the health and well being of millions of Americans.

Hoeven said “we need to bring (this dispute) to a peaceful resolution.” Yet Trump’s action, the order by the acting secretary of the Army Corps of Engineers, and the very idea of a strict father shouting, because I said so,” is not how to achieve a peaceful resolution.

An earlier version of this post ran at TrahantReports.com

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