WEBVTT - Dakota Access Pipeline Remains Contentious Legal Issue (Audio)

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<v Speaker 1>This is Bloomberg Law. I'm June Grasso. The U. S.

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<v Speaker 1>Army Corps of Engineers will be preparing a full environmental

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<v Speaker 1>impact study of the Dakota Access Pipelines disputed crossing. The

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<v Speaker 1>last big chunk of construction for the three point eight

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<v Speaker 1>billion dollar pipeline is under a lake that is the

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<v Speaker 1>war water source for the Standing Rock Sioux Tribe. Yesterday

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<v Speaker 1>in North Dakota, federal judge rule the Corps could proceed

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<v Speaker 1>with the study despite a request by energy transfer partners

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<v Speaker 1>to stop the study. My guests are Pat Parento, professor

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<v Speaker 1>at Vermont Law School, and Charles Warren, head of the

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<v Speaker 1>environmental practice at Kramer Levin, nef Talas and Frankel Chuck.

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<v Speaker 1>There has been a lot of litigation in this case.

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<v Speaker 1>What is the legal question in this last motion? Well,

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<v Speaker 1>I think the legal question here is whether the Army

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<v Speaker 1>can basically now require an environmental impact statement, you know,

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<v Speaker 1>after it had already been reviewed by the Corps of

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<v Speaker 1>Engineers and they indicate there were not adverse environmental impacts,

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<v Speaker 1>and then it was reversed essentially at the Assistant Secretary

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<v Speaker 1>of the Army level for Civil Works, and and they

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<v Speaker 1>asked for this environmental study, and I think that's going

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<v Speaker 1>to be that's going to be one of the issues

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<v Speaker 1>that they raise here, whether or not, you know, it's

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<v Speaker 1>necessary to do that, and the delays that entailed. Chuck

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<v Speaker 1>the pipeline was rerouted from Bismarck because of concerns about

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<v Speaker 1>potential impacts to its water supply. So wouldn't there be

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<v Speaker 1>concerns about this water supply as well? Yes, I agree,

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<v Speaker 1>I think there are concerns about the water supply, and

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<v Speaker 1>and I think thats pat was saying that there's always

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<v Speaker 1>the potential for these pipelines to leak in being that

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<v Speaker 1>close to a water supply where it could be contaminated.

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<v Speaker 1>That I think that is a serious issue. And there

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<v Speaker 1>have been demonstrations going on for quite some time about this.

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<v Speaker 1>As far as the Native Americans, Yeah, this has been

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<v Speaker 1>one of the biggest demonstrations that Native Americans have you know,

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<v Speaker 1>put on in many years, and people came from all

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<v Speaker 1>over the country to support them, and I think it

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<v Speaker 1>was all of that that really caused the Army to

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<v Speaker 1>take another look at this. Um Trump, who's transition team,

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<v Speaker 1>has said in memos that he supports the pipeline's completion. Uh,

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<v Speaker 1>could he seek to reverse the Army's decision last month

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<v Speaker 1>to continue to um to continue to do the study. Yes,

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<v Speaker 1>he could do that. It's I mean, it's it's not

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<v Speaker 1>It's not that easy. One safe now said all right,

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<v Speaker 1>we think that it's warranted that we do this study.

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<v Speaker 1>And I think that would bring a lawsuit if they

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<v Speaker 1>didn suddenly say no, it isn't. And uh so, but

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<v Speaker 1>that conceivably could happen because I think that the new

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<v Speaker 1>administration is going to going to want to proceed with

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<v Speaker 1>this pipeline and this is just sort of the last

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<v Speaker 1>link of it, and the issue will be, uh, it

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<v Speaker 1>could be delayed for a long time from their standpoint

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<v Speaker 1>if you go through with this environmental impact from the

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<v Speaker 1>Trump administration side, would it just take the Trump administration

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<v Speaker 1>telling the Army Corps of Engineers stopped the study or

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<v Speaker 1>would they have to go to court to stop it. No,

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<v Speaker 1>they could tell the Army Corps of Engineers. I mean

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<v Speaker 1>the Army was it really wasn't. The core was actually

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<v Speaker 1>the Army was the assistant secretary because the Corps had

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<v Speaker 1>originally looked at this and said, we don't think there's

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<v Speaker 1>a serious environmental impact here and but it went up

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<v Speaker 1>to the Assistant Secretary of the Army, and it is

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<v Speaker 1>the decision that ultimately rest with the Secretary of the Army,

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<v Speaker 1>and they could then say we've changed our mind. We're

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<v Speaker 1>going along with the corps original recommendation. So they could

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<v Speaker 1>just do that at an administrative level, then we wouldn't

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<v Speaker 1>have to go for it. Ultimately, Will the pipeline be

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<v Speaker 1>completed in your opinion? I think it will be. Yes.

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<v Speaker 1>I mean it may they may have to move. They

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<v Speaker 1>may have to move this last segment, but I think, uh,

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<v Speaker 1>there's places that they can move it. But but it's

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<v Speaker 1>they've built so much of it. I think it'd be

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<v Speaker 1>unlikely that it's not completed. And if the Trump administration

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<v Speaker 1>tries to move forward with it in this particular place, Um,

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<v Speaker 1>what who can sue? Is it the Indian tribes that

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<v Speaker 1>can sue? Are there other people that can sue? Yeah?

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<v Speaker 1>I think the Indian tribes, and then there are others

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<v Speaker 1>probably who have joined with them to the extent that

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<v Speaker 1>they have standing to sue. They probably could, but I

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<v Speaker 1>think there'll be a number of lawsuits to say, hey,

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<v Speaker 1>the judgment was made that we hadn't taken a complete

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<v Speaker 1>look at this and we need to do more. And

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<v Speaker 1>now you just can't turn around on a dime with

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<v Speaker 1>no basis, and you know, change your change your position.

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<v Speaker 1>North Dakota as U S. Senators Democrat Heidi height Camp

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<v Speaker 1>and Republican John Hoven said they think the federal government

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<v Speaker 1>is changing the rules in the middle of the process

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<v Speaker 1>and that the studies shouldn't be approved. So it seems like,

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<v Speaker 1>you know, both sides have representatives in in their in

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<v Speaker 1>their corner. And how long could this legal battle go on? Well,

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<v Speaker 1>I think he could go on for a while. And

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<v Speaker 1>I mean the court has basically said at one level

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<v Speaker 1>already that they think the the Army is justified in

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<v Speaker 1>doing this study. So you have one judge on the

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<v Speaker 1>record saying that that could be appealed certainly, and the

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<v Speaker 1>Palate Court could change its mind. But let's assume that

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<v Speaker 1>the Trump administration comes in and they decide to change

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<v Speaker 1>then I think that will be subject to suit, and

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<v Speaker 1>the issue will be whether a court will hold up

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<v Speaker 1>the completion of the pipeline while these suits are going forward.

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<v Speaker 1>That that will be the main the issue at that point, Chuck,

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<v Speaker 1>there are lots of suits around this pipeline, aren't there

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<v Speaker 1>from people who are claiming that they they weren't paid

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<v Speaker 1>the right amount for easements. And there's a lot of

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<v Speaker 1>court activity over this. Yeah, but that's the you know

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<v Speaker 1>that that's the general. Those kinds of condemnation lawsuits and

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<v Speaker 1>those can those don't really slow anything up. I mean

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<v Speaker 1>that happens all the time when government's UH sees UH

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<v Speaker 1>property and they have to pay fair compensation, and there's

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<v Speaker 1>always suits about what fair compensation. But that doesn't necessarily

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<v Speaker 1>hold up any projects. Is there um a lot of

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<v Speaker 1>a lot of political tension on this issue? Still? Yes, Yes,

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<v Speaker 1>I think you I think you have as you said,

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<v Speaker 1>I mean you have the United States senators from the state,

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<v Speaker 1>you have state officials, you have the company obviously, and

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<v Speaker 1>uh you know are at the last phase of this pipeline.

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<v Speaker 1>I mean, they've built many miles of this pipeline and

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<v Speaker 1>that's and that's the one side. And on the other

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<v Speaker 1>side there's the Indians and all the people that support

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<v Speaker 1>them and all the environmental groups and say, listen, you

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<v Speaker 1>can't put a water source in danger. By the possibilities

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<v Speaker 1>you could have a break here when there's easy alternatives,

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<v Speaker 1>what are the easy alternatives? Just another route. Yeah, just

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<v Speaker 1>for this leg, just to move this leg. I mean,

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<v Speaker 1>I don't think I'm actually surprised frankly that they haven't

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<v Speaker 1>come up with a solution like that. I would have

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<v Speaker 1>thought that the company, because it's not that hard to

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<v Speaker 1>move it. There are places not that close by that

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<v Speaker 1>don't impact the water source, and I think they could

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<v Speaker 1>have moved it, but they felt I think that they

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<v Speaker 1>were so far along they want to just push it

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<v Speaker 1>through and work. No, not much pushing it through. And

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<v Speaker 1>it's it's certainly you know, the visuals and um, the

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<v Speaker 1>audio from this is really something when you see all

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<v Speaker 1>the protests that have been happening and continue to happen.

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<v Speaker 1>Coming up, we're going to be talking about another environmental issue.

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<v Speaker 1>States argue to a federal appeals court for more say

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<v Speaker 1>over the release of endangered species in their borders as

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<v Speaker 1>Republicans target the landmark Endangered Species Act for rollbacks. We're

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<v Speaker 1>talking to Chuck Warren, who is the head of the

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<v Speaker 1>environmental practice at Kramer Levin. I'm June Grosso. This is

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<v Speaker 1>Bloomberg