Monday, December 12, 2016

Oil Pipelines and the Rule of Law

I saw quite a lot of cheering that Obama’s administration halted construction of the Dakota Access Pipeline. And I’ve heard some moaning that a Trump administration could resume construction. Rather than take a pro-pipeline or anti-pipeline stance, with this post I want to state clearly that I don’t want the president to be able to unilaterally halt or green-light an oil pipeline. Granting such powers to the president eviscerates the rule of law.

The "rule of law" means that our legal system is basically predictable and the rules are known ahead of time. That’s not to say it’s always fair. Something might look unjust as an individual act but still make sense as a rule. The point is we all know the rules ahead of time, the government must adhere strictly to procedures if it takes action against someone, and these procedures are well specified before any action takes place. The government cannot simply respond to populist outrage by nixing a lawful construction project. Such decisions should not depend on how sympathetic one of the parties to a conflict appears to outside observers. Native Americans are certainly a sympathetic group of victims (or “victims”, if you think their grievances aren’t well founded). We should actively guard against the temptation to side with a victim that tugs at our heartstrings, just as we should guard against all cognitive biases. The temptation to side with the most sympathetic party to a conflict must be overcome if we are to have a reasonably secure and predictable rule of law.

My best reading of the Dakota Access Pipeline construction is something like the following: There are legal procedures for building a pipeline, and Dakota Access, LLC followed these procedures. Read the Wikipedia page on the pipeline, especially the “History” section. It looks like they contacted all the right government agencies in each of the states it did construction in. It secured voluntary easements on an extremely high proportion of private properties it was building across (97% of North Dakota land, 93% of South Dakota land, 92% of Illinois land, and 82% of Iowa land). The use of eminent domain to secure easements from the hold-outs does bother me, but the notion that a few hold-outs could halt construction of a pipeline that everybody else wants bother me a bit more. “Eminent domain” used in this way doesn’t actually transfer ownership of property; it merely grants an easement so that construction can take place. Presumably farmers who had eminent domain used against them can continue to plant on the ground above the pipeline after construction is complete, for example. Anyway, there were various procedural and legal challenges to the pipeline, but the company ultimately got lawful permission to build.

If you’re reading this as a pro-pipeline polemic, you’re missing the point. I’m not arguing that the Dakota Access Pipeline *should* or *should not* be built. I’m not doing the cost-benefit analysis and rendering a pro- or anti-pipeline verdict. I’m merely arguing that, whatever process is in place for lawfully constructing a pipeline, that process should be followed. It should not be changed in an ad hoc manner by government executives because they sympathize with some victim group or because they favor the oil industry. Perhaps you think it should be easier to bring environmental grievances against a construction project. Or perhaps you think that Indian nations should get greater consideration, a “thumb-on-the-scale”, compared to the normal process. Maybe you think the use of eminent domain to acquire easements is a gross violation of property rights (I doubt anyone on the left will make a stand on the principle of property rights, but I’d be pleased to be proven wrong here). Maybe you think we should have an explicit “no new pipelines” policy. In the other direction, perhaps you think new pipelines are safer than old pipelines and shipment by rail, so perhaps you think we should actually fast-track new pipelines. Or maybe you think the environmental and administrative regulations are absurdly burdensome and should be relaxed. There are many potential arguments about what the optimal pipeline construction policy *should* be. That’s all beside the point. Whatever you imagine as your ideal system of “pipeline law”, whatever you think the process *ought to be* for building a pipeline, whether you think that process should be much more difficult or much less difficult, we aren’t living in a world where you designed those laws and procedures. I think the question is, “Given the laws and regulations and procedures as they exist today, does Dakota Access, LLC have a right to build a pipeline?” My somewhat casual reading of the facts is that they followed the existing procedure and bent over backwards to please everybody. I have not really read anything suggesting they didn’t do their due diligence, despite being deluged daily with anti-pipeline missives.

If you can't understand how anyone could possibly take the "pro-pipeline" stance, please see this reddit conversation and this court document of a legal decision against the Standing Rock Sioux Tribe. From the legal decision: “The Tribe fears that construction of the pipeline, which runs within half a mile of its reservation in North and South Dakota, will destroy sites of cultural and historical significance. It has now filed a Motion for Preliminary Injunction, asserting principally that the Corps flouted its duty to engage in tribal consultations under the National Historic Preservation Act (NHPA) and that irreparable harm will ensue. After digging through a substantial record on an expedited basis, the Court cannot concur. It concludes that the Corps has likely complied with the NHPA and that the Tribe has not shown it will suffer injury that would be prevented by any injunction the Court could issue. The Motion will thus be denied.” I’m curious what my opinion would be if I had dug “through a substantial record” as this court has done. I’m curious if all the anti-pipeline hawks on my Facebook feed would change their minds if they had substantially more information than they currently do. My fear is that many of them wouldn’t. Maybe this is uncharitable, but I get the feeling that people are instinctively choosing the more emotionally compelling side of this issue. Or maybe it's just that the noisiest idiots show up most prominently on my Facebook feed and most people are actually pretty reasonable. I really hope it's the latter.

Let me make one further clarification. By "rule of law," I'm not making the idiotic claim that we should always enforce all the laws on the books, no matter how despotic. Sometimes the rule of law actually runs counter to this notion of blindly enforcing statutes. Sometimes chest-thumping law-and-order types demand that we must zealously enforce our immigration laws (or drug laws or whatever), because "We are a nation of laws." I'm making a very different sort of argument. The rule of law means that the law is predictable and sensible. Strictly enforcing all statutes runs counter to this principle. The person using illegal drugs in the privacy of his own home, or the adult immigrant who was brought to this country as a small child, or the motorist speeding at five over the speed limit, expects some discretionary deference from the legal system. A strict enforcement of statutes would contradict this entirely reasonable expectation. 

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