On Sept. 15, the Trump administration proposed regulations that could make the federal pipeline permitting process more secretive and create a fast track for Big Oil. Just two weeks earlier on Aug. 31, one of the potential beneficiaries of that proposal, the CEO of the company that owns Dakota Access pipeline—Energy Transfer Equity’s Kelcy Warren—gave a Trump super PAC $10 million.
JUST IN:— Robbie Jaeger
Pro-Trump Super PAC "America First Action" received $10,000,000 donation from Kelcy Warren, chairman and CEO of Energy Transfer Partners—owners of the Dakota Access Pipeline.https://t.co/UqHGSCQUyB pic.twitter.com/pCDtNfR5y5
(@RobletoFire) September 21, 2020
Ruth Hopkins, a Dakota/Lakota Sioux writer and lawyer, called the campaign contribution “suspicious.”
“It wouldn’t be the first time he’s given Trump cash shortly before getting lucky with his pipelines,” Hopkins told The Real News. “He donated to Trump’s presidential campaign, and one of the first executive orders Trump signed after being inaugurated was to push through Dakota Access and Keystone XL.”
The Army Corps of Engineers proposal calls for a reauthorization of the Nationwide Permit 12 (NWP 12) oil and gas pipeline permitting program, the same expedited permit Dakota Access got in the months leading up to the standoff at Standing Rock Sioux tribal land in North Dakota in 2016. NWP 12 is also the subject of ongoing high-profile federal litigation because of that expedited permit. The legal news website Law360 noted that the new NWP 12 proposal could be an attempt to make that litigation moot, because it pertains to the 2017 NWP 12 regulation and not the new proposed rule.
The proposal comes two years before NWP 12 expires and appears to tie the hands legally of a prospective Biden administration if Trump loses the election in November. If it advances, the proposal could make even more opaque a regulatory regime already slammed by climate justice activists as circumventing transparency and democracy. It would add to the list of the 100 proposed or enacted environmental regulation rollbacks put in place by Trump.
“Once again the Trump administration is rushing changes to our environmental regulations to help their friends in the oil and gas industry,” Mitch Jones, policy director for Food & Water Watch, told The Real News. “It’s yet another unconscionable power grab.”
The new proposal reduces pre-construction notification (PCN) requirements for companies seeking a permit from the Corps. Currently under NWP 12, applicants must issue a PCN to the Corps prior to construction, which the Corps then publishes as a public notice only for “projects determined to exceed minimal individual or cumulative adverse environmental effects and that may be contrary to the public interest.” Under the new proposal, even the PCN will no longer be needed, except for a few exempted cases for pipelines.
The corporate law firm K&L Gates explained that those new PCN exemptions include “land clearing in a forested wetland,” electricity “utility lines in waters of the United States” exceeding 500 feet, and any utility line running parallel to US waters. This would exempt most pipeline projects from public notice because almost all of them run through bodies of water, as defined by the Clean Water Act, somewhere along their routes.
The PCN will only be required for pipeline proposals less than 250 miles in length. The length is important because, while most major pipelines are longer than that, the oil industry began using NWP 12 under the Obama administration to segment pipelines into hundreds of “single and complete” pieces that cross waterways. The “single and complete” language qualifies each segment for a NWP 12, which only applies to projects half an acre in size or smaller. By using this scheme, the Corps circumvents the National Environmental Protection Act (NEPA), which requires public hearings and comments for major federal permit proposals. NEPA, a staple of environmental law for 50 years, is also being dismantled by the Trump administration.
The proposal comes in the aftermath of publicly aired worries about and lobbying on NWP 12 during the first half of 2020 by oil and gas companies. Those lobbying on NWP 12 have included Enbridge, Marathon Petroleum, Chesapeake Energy, Phillips 66 and ConocoPhillips and American Electric Power, as well as trade associations such as the American Petroleum Institute, the Interstate Natural Gas Association of America, GPA Midstream Association and the U.S. Chamber of Commerce. Phillips 66, Enbridge, and Marathon are all co-owners of Dakota Access Pipeline LLC, the parent company which owns Dakota Access, alongside Energy Transfer Equity.
The Corps said in a press release that the proposed rule “meets our goals of simplifying and clarifying the nationwide permits, as well as reducing burdens on the regulated public, while continuing to protect our nation’s wetlands and aquatic resources.”
Jones disagreed, saying “‘Simplifying and clarifying’ is Trump speak for ‘speeding and gutting.’” Jones also spoke to the climate implications of the proposal.
“We know we cannot build any more fossil fuel infrastructure if we want any hope of preserving a habitable planet. And that means, among other things, not one more pipeline,” he said. “But this administration hasn’t seen an environmental law or regulation it hasn’t wanted to revoke or water down in its crazed effort to profit the very industry that is killing our planet.”
The new NWP 12 could also have corrosive impacts on Native American tribal relations with the federal government above and beyond those already seen with Dakota Access.
“Not only would they not have to consult with Tribes like they’re currently legally obligated to do before commencing work, they could very well have pipes in the ground and under our waterways before anyone even knows about it because this new process wouldn’t require them to notify the government about their activities,” said Hopkins. “Nationwide permits are unlawful and because they’re being forced through now, we should all be alarmed and concerned at the irreparable harm this could cause before the next presidential term begins and courts or congress have a chance to step in.”
Hopkins sees the regulatory proposal as a call to action for Indigenous peoples akin to the Dakota Access pipeline fight: “Once again, my people could be forced to put their lives in danger to stop lawless oil corps from destroying our ancestral lands after the government fails to follow its own laws and officials cover their eyes while the country descends into climate ruin,” she said.
A public comment period is now open for the proposal and is set to close on Nov. 14, 11 days after Election Day. The administration can then propose a final rule after the public comment period’s closure.