Bloomberg Law
April 2, 2020, 8:00 AM

INSIGHT: Infrastructure Investment Requires Trusting the Process

Tom Magness
Tom Magness
Grow America’s Infrastructure Now

The Dakota Access Pipeline (DAPL) made headlines March 25 after a federal judge ordered the U.S. Army Corps of Engineers to conduct an environmental impact statement of the 1,172 mile crude oil pipeline.

The pipeline, which has been safely transporting oil from North Dakota to Illinois for nearly three years, has been subject to previous legal challenges in which the existing and previous environmental assessments have consistently been deemed adequate.

At the same time, the Bayou Bridge pipeline, located in Louisiana, received a very different ruling despite undergoing a very similar environmental review process. Unlike the Dakota Access Pipeline decision, a U.S. district court judge determined the Army Corps adequately studied the potential environmental impact of the pipeline in compliance with the National Environmental Policy Act and the Clean Water Act.

The Need for Consistency

The starkly different determinations on Dakota Access and Bayou Bridge make one thing clear: the need to trust the regulatory process and the non-partisan professionals charged with its oversight. This is not the time for politics and uncertainty.

With such investments costing hundreds of millions of dollars, infrastructure developers require regulatory consistency and a straightforward permitting and approval process. Clear and achievable guidelines must be laid out and once met, companies should be able to trust that their projects will be able to operate as permitted.

Furthermore, it is paramount that the American legal system follows the lead of the experts that have been entrusted to oversee infrastructure development and its environmental impacts. The U.S. Army Corps of Engineers is made up of some of the nation’s best engineering and scientific minds—career professionals who are tasked with strengthening our nation’s security, preserving our waterways, and energizing the economy with environmental stewardship as a guiding principle.

As they did with the Bayou Bridge, the Corps performed their due diligence—and more—with Dakota Access. The agency initially reviewed DAPL for nearly two years. The 1,261-page environmental assessment found the project posed “a finding of no significant impact” or “FONSI,” and with the additional approval of state regulators, was permitted to proceed. Then again, at the behest of environmental groups and local indigenous tribes, the Corps performed a subsequent year-long review which confirmed its original findings.

Process Undermined

This court ruling on Dakota Access undermines the long-accepted environmental review process and questions the Army Corps’ authority to permit and approve proposed infrastructure projects. The order to complete a full environmental impact statement (EIS) for the pipeline operating safely since June 2017 will likely take several years to complete, at significant taxpayer expense, likely to reach the same conclusion: the pipeline poses no significant environmental impact.

We don’t need to fix what isn’t broken. Pipelines have served as the backbone of American energy delivery for decades, and studies have proven pipelines to be the safest method of transporting natural gas and oil—they take the risk off our roads and rails. And given that their operation does not produce carbon emissions, they are also the most environmentally sustainable form of energy delivery. Dakota Access is no different.

This is not the time for uncertainty. In light of the ongoing COVID-19 crisis, our nation’s pipeline network has brought entirely new security benefits to the forefront. Much unlike the American rail and trucking industry, our energy infrastructure network has been largely unaffected by the pandemic.

While truck drivers have faced new challenges for operations, advancements in sensor technology that allow for remote monitoring and robotic maintenance yield confidence that our nation’s pipeline network can weather the storm. Questioning the validity of our pipeline systems and interjecting uncertainty into the permitting process puts the nation’s energy and economic security at risk when we need it most.

More than two million miles of pipeline seamlessly operate day in and day out without issue. This phenomenon is possible thanks to developers who utilize the latest technology, innovative drilling techniques, and skilled craftsmanship working together with regulators like the Army Corps who carefully study every detail, mitigate any potential concerns, weigh all issues in a balanced approach, and ultimately permit large scale infrastructure projects to best serve the needs of the Nation.

But for this collaborative effort to continue providing Americans with the energy they rely on each day, we need to trust the process and those tireless professionals who oversee it.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Tom Magness (U.S. Army colonel, retired) served as a commander in the U.S. Army Corps of Engineers, and he is the founder of the Eagle Leadership Group and currently acts as a strategic adviser to the Grow America’s Infrastructure Now Coalition.

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