J. Bennett Johnston Jr., a Democrat, was a member of the U.S. Senate from Louisiana from 1972 to 1997, is president of the lobbying firm Johnston & Associates, which represents the American Petroleum Institute. Daryl Owen is president of Owen Associates and represents Energy Transfer Partners, the company building the Dakota Access Pipeline.
Several weeks ago environmental activists broke into the pumping facilities for four operational oil pipelines and began closing valves, recklessly endangering themselves, the integrity of the pipelines and the very environment they profess to protect. These actions represent a dangerous escalation of the tone and tactics in the climate-change debate and can only be described as domestic terrorism.
The perpetrators claimed their actions were in solidarity with the Standing Rock Sioux Tribe and its opposition to the Dakota Access Pipeline. That may be true in a narrow sense, but any notion that they were motivated by concerns over tribal rights is pure fiction. Rather, tribal rights and the historic indignities visited upon Native Americans are just one more set of tools in the box of those hostile to fossil fuels.
The result, in the case of the Dakota Access Pipeline, is a rapidly escalating debate that has become largely unmoored from the facts. This circus has been fueled by social media, where any intersection with the truth is brief and accidental, and food-chain journalism that repeats ungrounded claims. It has attracted the support of everyone from musicians to politicians whose understanding of the project is, at best, selective, and has prompted editorials from otherwise serious publications that have both the ability and responsibility to know better.
Those who sympathize with the protest movement have an incomplete if not distorted view of its nature. A number of the self-proclaimed “peaceful protesters” have perpetrated violence against pipeline crews, done millions of dollars of damage to construction equipment and set up a semi-permanent encampment on federal lands in violation of trespass laws. They have hacked the website of the project developer and issued vile and profane threats, including death threats, against company employees. State and local law-enforcement leaders have repeatedly called for the assistance of federal law enforcement personnel — requests that have been summarily rejected by the Justice Department.
How did it come to this? This is, after all, a pipeline project. Fourteen other pipelines cross the Missouri River, including nine that carry oil or petroleum product. The proposed crossing for the Dakota Access project was chosen because it already hosts a natural gas pipeline and a high-voltage electric transmission line. The oil that would be transported in this line is currently finding its way to market (and across the Missouri River) by rail and truck — modes that are far less safe than pipeline transport. At no point in its 1,172-mile path does the pipeline cross a single inch of tribal reservation land. Indeed, 99.98 percent of the project is on private lands, and all the rights of way for those lands have been secured.
The Sioux argue that the pipeline’s route would disturb lands that, while not on their reservation, remain sacred. In response, the developers have made 141 route changes to avoid disturbance of identified sites on private lands. Nevertheless, the tribe went to federal court seeking to block completion of the project, arguing that it had not been properly consulted during the more than two-year permitting process.
These claims were rejected in a thorough 58-page opinion rendered by an Obama-appointed federal judge. That opinion documents dozens of efforts by the developer and the Army Corps of Engineers to engage the Standing Rock Sioux Tribe in the consultation process and concluded that the Standing Rock Sioux “largely refused to engage in consultations.”
Within minutes of this ruling, however, the Justice Department, joined by two other federal agencies, released a letter indicating that it nonetheless was withholding an Army Corps easement, the last of more than 200 federal permits needed to complete the project. Two months later the department continues to do so. Both the authority of the government to withhold the easement, and its reasons for doing so, remain unclear.
What is clear is that the government has sent a chilling message to the private sector about the rule of law as it relates to infrastructure development. The easement being withheld is part and parcel of a river-crossing permit the pipeline has already received. It is a simple ministerial action authorizing the pipeline to cross beneath federal lands and, for want of a simple signature by an Army Corps bureaucrat, would finalize the process. By arbitrarily refusing to follow the law, the Justice Department has placed a lawfully permitted, vital $4 billion infrastructure project into suspended animation.
What is also clear is that by refusing to enforce the law, the Justice Department has countenanced, if not encouraged, behavior at the crossing site that borders on armed insurrection. In a recent letter to Attorney General Loretta E. Lynch, Jonathan F. Thompson, head of the National Sheriffs’ Association, stated “From our perspective, the federal government’s inaction is tantamount to supporting (and encouraging) dangerous behavior. . . . When 2,500 protesters are threatening, intimidating, and using guerrilla tactics to stop a legal commercial initiative, something is terribly wrong with our civilization.”
To be sure there is much to be discussed and much to be regretted about the past 150 years of U.S.-tribal relations. But a real estate document for a pipeline river crossing seems hardly the pretext to do so. The entire situation has been blown far out of proportion and in the absence of firm, clear, expeditious federal action, may continue to escalate. Thus far federal officials have abjectly failed to live up to this responsibility, and in so doing they have almost certainly contributed to the public’s rapidly eroding trust in its government.