Dakota Access Delays Threaten the Future of Infrastructure

Dakota Access Delays Threaten the Future of Infrastructure
AP Photo/James MacPherson

The 2016 election will go down in history as one of the more toxic and divisive in modern American history. Yet it is worth considering at least one issue that received near universal support from both candidates: the need to invest in infrastructure. 

Political leadership has long viewed infrastructure investments by the private sector as the backbone of the U.S. economy. Politicians praise transportation, telecom, water, and energy infrastructure as the very lifeblood of our economy, seamlessly moving the supplies, energy, and information to where it is needed. As Donald Trump himself stated moments after winning the presidential election, “We’re going to rebuild our infrastructure, which will become, by the way, second to none. And we will put millions of our people to work as we rebuild it.”

In recent years, the Progressive Policy Institute (PPI) created a benchmark by which to compare American companies in the quality and quantity of their investments through its annual “Investment Heroes” report. Investment increased ever so slightly in PPI’s report this year, fueled in large part by private investments into pipeline infrastructure. Energy Transfer Equity (ETE) — the parent company of the Dakota Access pipeline — was ranked fourth on their new Investment Heroes list, spending an estimated $9 billion in the economy in 2015. ETE is taking great strides to catalyze the growth of the American economy through Dakota Access and its other energy infrastructure projects.

And yet with all of this consensus, the uncertain regulatory environment surrounding the Dakota Access Pipeline has raised serious questions about the future of investments of this nature. In recent weeks, the Obama Administration has stalled a validly approved government permit with the result that the pipeline remains in limbo, despite federal courts ruling in support of the project. Such political interference has a disproportionate chilling effect on nearly every single infrastructure project in the country. The injection of politics into a well-established review and approval process means that no project is safe, even those already approved and in the midst of construction.

Continuing construction delays are creating an untenable security situation in North Dakota and across the route. Construction of Dakota Access was scheduled to be finished before year’s end. Instead, despite federal courts ruling in favor of the review conducted by federal officials, violence, riots, arrests, arson, millions in equipment damage, and reports of slaughtered animals have ensued. As a result, the North Dakota Agricultural Commission has had to set up a hotline for local ranchers who fear for their safety and the safety of their properties and livestock. These troubling activities have continued to escalate due to the federal government’s refusal to enforce the law on federal property and apparent tolerance for reckless behavior on private property, all of which puts the community in danger. 

Elected officials have been forced to weigh in on behalf of their constituents. As U.S. Senator Heidi Heitkamp (D-ND), said in a recent statement, “I’ve been pressing the Army Corps of Engineers to make a decision determining the course of the pipeline, while pushing for federal law enforcement resources our officers need to keep peace on the ground.” Simply put, this kind of behavior must not be tolerated. The federal government should provide needed assistance to law enforcement on the ground. Moreover, the Obama administration should bring a close to these protests by finalizing its permit decision and allowing construction to be completed.

Unfortunately, the precedent set by the federal government’s action (or inaction) throws our sound regulatory process into uncertainty. When pursuing projects of this scope, companies must be able to count on a legal process to plan. But by issuing a halt on construction, the Obama administration has effectively locked Dakota Access into an indefinite period of review, ignoring the law under which the pipeline was approved. Tribal consultations — the issue at the heart of the ongoing protests — were a key component of this process. Dakota Access, state regulators, and the U.S. Army Corps of Engineers conducted a thorough series of steps, consulting tribal nations and identifying any potential impacts to cultural resources. The full approval of the project demonstrated that the company’s completion of these requirements was more than adequate. 

It is for the overall benefit of our nation’s citizens that the federal government and state governments have infrastructure review processes that are conducted by career Army and government employees and thus remain beyond the reach of politics. It is time for the administration to restore faith in a system that has served us well by showing that such processes are not open to political gamesmanship. 

The Obama administration has an opportunity to restore confidence in citizens, investors, and the hard-working government employees responsible for safeguarding the rules and laws enacted to ensure projects are handled fairly and equitably. By re-issuing the pipeline's final easement, the president can restore regulatory certainty to this project — and more importantly, leave behind a legacy of confidence in the government institutions created to address our national infrastructure needs. 

Brigham A. McCown is a public policy expert and attorney. He formerly served as the federal regulator overseeing energy and hazmat transportation for the country.

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