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Late last month, U.S. District Court Judge James Boasberg handed down a disappointing ruling in the arduous fight over the Dakota Access Pipeline (DAPL). His opinion said that while the pipeline is currently operating without a federally required environmental impact statement and in absence of proper tribal consultation, the tribes (who are the plaintiffs in the case) have thus far been unable to prove that the pipeline’s continuation is likely to cause “irreparable harm.”
What comes next is interesting: Judge Boasberg states explicitly that the Army Corps of Engineers, one of the defendants in the case, is partially at fault for the plaintiff’s inability to prove likely harm, and is directly at fault for oil continuing to flow through key waterways that several tribal nations depend on for drinking water. In other words, the defendants are guilty of making it impossible for the court to find them guilty. Boasberg goes on to point to the Army Corps’s conspicuous refusal to take a side in the matter of whether the pipeline should be allowed to cross beneath Lake Oahe, a large reservoir on the Missouri River. “By ducking the controversy surrounding the Oahe crossing, the Corps actively tolerates DAPL’s continued operation underneath a key federal waterway that it lacks the necessary authorization to traverse,” the judge wrote.
The Army Corps’s disregard for tribal interests regarding DAPL is especially curious considering the news that the Biden administration is in the process of restoring a rule that, prior to its Trump-era reversal, granted states and tribes the authority to block pipelines and other fossil fuel projects that could pollute their waterways. And Biden’s fiscal 2022 budget proposal identified environmental justice as a top priority for the Army Corps and said the Corps should not fund work that subsidizes fossil fuels. This apparent disconnect between Biden’s intentions and the Army Corps’s behavior illustrates that, regardless of rosy headlines, it really doesn’t matter if Biden’s EPA is down for climate action (or respect for tribal sovereignty) if obscure divisions like the Corps refuse to cooperate.
How could it be, though, that the Army Corps of Engineers, a subset of a branch of the Department of Defense, has such power over the future of a controversial domestic pipeline? The answer to that lies in the 1972 Clean Water Act, which tasks the Army Corps of Engineers with evaluating and issuing permits for any project that alters the shoreline of a river, is located near or within a wetland, or requires the dredging of a body of water.
In practice, this means that many controversial pipelines that harm animals, residents, burial sites, and the climate cannot move forward without the Army Corps’s go-ahead. That includes the Dakota Access Pipeline and Enbridge’s Lines 3 and 5, as well as proposed mining projects like PolyMet’s near the Boundary Waters Canoe Area Wilderness in Minnesota. Each of these projects is deeply opposed by Indigenous and environmental activists.
In the case of DAPL, the Army Corps is working on an environmental impact statement (the court mandated one after the Corps decided for themselves, wrongly, that the process was unnecessary). The EIS is expected to be completed in March 2022; meanwhile, over half a million barrels of crude oil pass underneath the Missouri River, which provides drinking water to the Standing Rock Tribe, each day.
Here’s the kicker: At any moment, the Army Corps could choose to end DAPL, at least during the waiting period before the EIS is publicized (which, if done correctly, would likely be exactly what tribal nations would need to bring about the pipeline’s final demise). It’s curious why they don’t, especially after Biden canceled a necessary permit for the Keystone XL pipeline on his first day in office, effectively shuttering its prospects.
Since its inception in 2014, the pipeline has received mixed signals from both parties. The Army Corps has been stubbornly silent, stretching back to Trump’s presidency and continuing through to today.
But none of that excuses Biden’s unwillingness to shut down DAPL now. And it is wildly unhelpful that the person Biden appointed to lead the Army Corps came to the job directly from WilmerHale, a notorious BigLaw firm infamous for its defense of the fossil fuel industry.
Biden announced last month the nomination of Michael Connor as the assistant secretary of the Army for civil works, which oversees the Army Corps. Connor, an enrolled member of the Taos Pueblo tribe, was an early contender to lead the Department of the Interior (DOI), where he worked for upward of 15 nonconsecutive years across most of the Clinton and Obama presidencies. Instead, Deb Haaland was named to the position, in large part thanks to Indigenous groups active on environmental issues.
Having held the positions of deputy secretary, Bureau of Reclamation commissioner, and director of the Indian Water Rights Office at the DOI as well as counsel to the Senate Committee on Energy and Natural Resources, Connor is undoubtedly experienced in the inner workings of government. But this might make him all the more dangerous, given his apparent disdain for Interior’s actual mission. Connor’s time at WilmerHale indicates concerning conflicts of interest. He was a partner with the firm’s Energy, Environment and Natural Resources practice group, which is known for defending oil and gas giants including Anadarko and BP. The firm boasts that it helps coal, oil, and gas companies navigate “regulatory challenges’” and counsels on the “full lifecycle of oil, gas and liquefied natural gas projects, from pre-permit strategy and permitting to implementation and functionality.” The firm also lobbied on behalf of natural gas company NiSource on issues related to pipeline safety, then assisted NiSource in the sale of their subsidiary Columbia Gas after it faced a federal inquiry about a deadly explosion.
Connor also worked with WilmerHale’s Environmental Enforcement and Litigation practice, which has represented chemical manufacturers and utility companies in investigations by OSHA and other federal regulators. The practice recently defended a corporate client (which they declined to name) in a federal Clean Water Act criminal investigation concerning an oil spill in Louisiana, and represented an oil and gas company in cases regarding some of the largest chemical cleanups in the United States.
At WilmerHale’s Denver office, Connor worked closely with Obama’s secretary of the interior, Ken Salazar, a longtime ally of the fossil fuel industry largely responsible for some dangerous delays in climate action during Obama’s presidency. While in office, Salazar exempted BP from an environmental review in the Gulf of Mexico only one year prior to the Deepwater Horizon spill. He then left to join WilmerHale, which, naturally, defended BP in litigation around the oil spill.
It is worrying, then, that Connor is set to lead the Army Corps. It is not customary for a person who spent several years as partner at a BigLaw firm like WilmerHale, representing the interests of polluting corporations, to turn around and work with only the public good in mind. It is unlikely that Connor will be an exception to this trend.
The Army Corps already faced questions of trust and transparency, regardless of its new leadership. Take, for example, the Corps’s “egregious design mistakes” responsible for levees failing and flooding New Orleans during Hurricane Katrina, which they then tried to distract from by spending millions to mislead the public and pinning the blame on locals.
A corporate defense lawyer taking over a crucial government post does not often lead to good outcomes for the majority of Americans. But Michael Connor has the opportunity to change that narrative. Once he is confirmed, he can simply bring down DAPL single-handedly. He will have immense agenda-setting power to chart a new course for climate action and improve his own legacy in the process. We’d like nothing more than to have our assumptions proven wrong about him, and he’d surely win allies in the environmental movement. What better way to do so than fully respecting tribal sovereignty and prioritizing clean water and climate reality over destructive land use?
If Connor fails to do so, the progressive wing of the Democratic Party (and anyone who is willing to face the reality of climate change) must apply pressure. Pressure helped lead to Secretary Haaland at Interior, a significant win. But control of the Army Corps of Engineers going to Connor underscores the degree of focus and scrutiny progressives need on positions both prominent and obscure within the executive branch. Positions like this one, with confusing names often buried in seemingly unrelated departments, often have unilateral power to transform key issues. With any new piece of legislation, no matter how bold, people like Connor are the ones actually implementing it. They must not be forgotten—the future of the planet depends on our hawkish attention.
Photo: “#NoDAPL Emergency Rally DC 20” by Stephen D. Melkisethian is licensed under CC BY-NC-ND 2.0