by Bill Forman
Can the incoming administration reverse the Corps’ decision?For further information on the Dakota Access Pipeline and the controversies surrounding it, see the following Indy feature stories:
The incoming administration may very well try to reverse the EIS decision, but that may not be a simple feat. Agency decisions must be based on sound reasoning and well-supported by the facts. The Corps decided that an EIS is warranted after months of careful consideration. It set forth the legal basis and reasoning for the decision in a memorandum from Assistant Secretary of the Army Jo-Ellen Darcy, and the decision to prepare an EIS is fully supported by the National Environmental Policy Act (NEPA) and its implementing regulations.
If a Trump administration were to reverse course on a decision like this, it too would have to be accompanied by sound reasoning that makes a rational connection between the facts found and the decision made. Any hasty or arbitrary decision would be legally vulnerable and subject to further litigation. Of course, that’s not to say the incoming administration won’t rush a decision.
Another scenario would be for Congress to approve the final easement and deem it compliant with all environmental laws, either through an appropriations rider, a stand-alone bill, or some other mechanism that garners enough support from the House and Senate.