WEBVTT - Environmentalist's Trifecta of Wins Against Pipelines

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<v Speaker 1>You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

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<v Speaker 1>The Standing Rock Sioux Tribe has been protesting the Dakota

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<v Speaker 1>Access Pipeline and litigating against it for years, saying the

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<v Speaker 1>project threatens their water supply and religious rights. But since

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<v Speaker 1>the beginning of his administration, President Trump has pledged to

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<v Speaker 1>get rid of the red tape he calls federal regulations

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<v Speaker 1>backing major oil pipeline projects. We've begun the most far

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<v Speaker 1>reaching regulatory reform in American history. We've approved longstalled projects

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<v Speaker 1>like the Keystone Xcel and the Dakota Access pipelines. But

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<v Speaker 1>those pipelines are stalled once again, and another major pipeline

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<v Speaker 1>project is over This week, environmentalists are celebrating a trifecta

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<v Speaker 1>of victories blocking major oil pipelines, as a court ordered

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<v Speaker 1>the Dakota Access pipeline to shut down pending environmental review.

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<v Speaker 1>The Supreme Court refused to reinstate streamline permitting for the

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<v Speaker 1>Keystone Excel pipeline, and developers of the Atlantic Coast Pipeline

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<v Speaker 1>just called it quits. Joining me is Pat Parento, a

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<v Speaker 1>professor of environmental law at the Vermont Law School. Pat

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<v Speaker 1>this is the first time that a judge has ordered

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<v Speaker 1>a major oil and gas pipeline to shut down. I

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<v Speaker 1>think it was surprising that Judge Boisberg, who is known

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<v Speaker 1>as a judge who's sympathetic to environmental issues, but who

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<v Speaker 1>you know, is not a sure thing when it comes

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<v Speaker 1>to rulings. He is issued ten different opinions in this

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<v Speaker 1>Dakota Access pipeline case, most of them when in favor

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<v Speaker 1>either of the government or the pipeline company, and so

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<v Speaker 1>it was a big surprise that he took into account

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<v Speaker 1>the disruptive effect of stopping the oil flowing through the

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<v Speaker 1>pipeline while an environmental impact statement is done, which will take,

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<v Speaker 1>by the Corps estimate thirteen months or more. But he said, oh,

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<v Speaker 1>I really don't think I have a choice. I warned

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<v Speaker 1>the CORE that they were proceeding in haste and not

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<v Speaker 1>taking into account the threats to the water supply of

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<v Speaker 1>the Standing Rock Tribe and others where the pipeline was

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<v Speaker 1>going to go under the Missouri River and under Lake Oahi,

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<v Speaker 1>and that's the source of drainy water for the tribe

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<v Speaker 1>and it's very close to the reservation. So even though

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<v Speaker 1>he had told the CORE exactly what they needed to

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<v Speaker 1>do to fix the problems with their analysis. They didn't

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<v Speaker 1>do it. Maybe because they're under the orders of the

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<v Speaker 1>President to get this thing done and approved and over with.

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<v Speaker 1>We don't know. But the point is the Jedge said,

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<v Speaker 1>you didn't really leave me any option other than to

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<v Speaker 1>just allow you to continue to thumb your nose at

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<v Speaker 1>the law, other than to shut you down. So that's

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<v Speaker 1>what I've done. So now. At the same time, the

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<v Speaker 1>Supreme Court has agreed to reinstate a fast track water

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<v Speaker 1>permitting program for pipelines across the country except for the

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<v Speaker 1>Keystone x L Yes, that's right. The Center for Biological

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<v Speaker 1>Diversity and some tribes and some other environmental groups had

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<v Speaker 1>sued challenging the construction of Keystone under this nationwide permit

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<v Speaker 1>Number twelve. Judge Morris and Montana concluded that the nationwide

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<v Speaker 1>permit that the Core of Engineers uses to authorize pipeline

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<v Speaker 1>construction was illegal, and it was illegal because the Corps

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<v Speaker 1>didn't consult with the Fish and Wildlife Service under the

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<v Speaker 1>Endangered Species Act. Because, of course, all of these pipelines

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<v Speaker 1>across the country, there are thousands of miles of them.

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<v Speaker 1>They do from time to time encounter endangered species habitat.

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<v Speaker 1>And so Judge Morris said, your permits illegal. But he

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<v Speaker 1>went further and said, because the nationwide permit itself is illegal,

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<v Speaker 1>all of the construction that's relying on it should stop.

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<v Speaker 1>And that's what the Supreme Court said. No, we're not

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<v Speaker 1>going to enjoin all pipeline construction across the country, but

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<v Speaker 1>the injunction against Keystone will stand for now and for

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<v Speaker 1>the trifecta here. And we talked about this case when

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<v Speaker 1>it came before the Supreme Court. The Atlantic Coast Pipeline

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<v Speaker 1>had just one a Supreme Court victory, but it's developers

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<v Speaker 1>are pulling the plug on it. Yes, I mean, they're

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<v Speaker 1>the cost of the pipeline or skyrocketing. The original estimate

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<v Speaker 1>was something like five billion, it's now eight billion. There

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<v Speaker 1>are still three other injunctions against the Atlantic Coast Pipeline

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<v Speaker 1>pending in the Fourth Circuit Court of Appeals. So yeah,

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<v Speaker 1>so the developer finally just threw in the towel and

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<v Speaker 1>said we just can't absorb um these escalating costs. And

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<v Speaker 1>of course, at the same time, there's a glut of

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<v Speaker 1>gas on the market and with the unknown consequences of

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<v Speaker 1>the coronavirus pandemic in its economic fallout, it's not clear

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<v Speaker 1>when you know that market demand is going to rebound.

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<v Speaker 1>So the backers of this project, of financiers of this

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<v Speaker 1>projects are concluding it's just too big a risk and

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<v Speaker 1>it just isn't as profitable as that once looked. And

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<v Speaker 1>it's a real interesting point here that you mentioned the trifecta,

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<v Speaker 1>with these three huge decisions affecting major pipelines coming within

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<v Speaker 1>days almost of each other, and all of them related

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<v Speaker 1>to legal problems that frankly are a result of the

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<v Speaker 1>Trump administration's determination to ram rod these projects through the law,

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<v Speaker 1>and the federal courts are stopping them left and right.

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<v Speaker 1>Market forces are contributing to it, but the legal vulnerabilities

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<v Speaker 1>of these projects is a big reason why they're collapsing.

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<v Speaker 1>Is it because the environmentalists who have been bringing these

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<v Speaker 1>actions have been smart about where to bring them, have

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<v Speaker 1>used a specific strategy, or is it just that the

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<v Speaker 1>Trump administration hasn't been following the law. It's both. I mean, clearly,

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<v Speaker 1>the courts are finding in case after case that the

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<v Speaker 1>administration is not following the law. And again, these laws,

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<v Speaker 1>like the National Environmental Policy Act have been on the

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<v Speaker 1>books for fifty years. Um. So it's not anything new

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<v Speaker 1>that the courts are coming up with. They're simply saying,

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<v Speaker 1>the law is really clear here, and you're simply not

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<v Speaker 1>following it. Um. And in part because you're getting a

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<v Speaker 1>direction from the White House to accelerate these energy projects. Um,

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<v Speaker 1>damn the torpedoes and damn the law kind of process.

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<v Speaker 1>And that's really the major reason. The environmental groups have

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<v Speaker 1>been smart in picking their targets and making their arguments.

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<v Speaker 1>But frankly, I think the Trump administration is losing these

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<v Speaker 1>cases more than the environmentalists are winning them. There was

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<v Speaker 1>always this idea, not in law, but this idea that

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<v Speaker 1>courts would never shut down pipelines that were in service.

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<v Speaker 1>Now that we have this decision, well, it's fuel litigation

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<v Speaker 1>against existing pipelines, I don't think so. I think the

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<v Speaker 1>environmentalists here have been smart and strategic in going after,

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<v Speaker 1>for the most part, these major projects. I mean, Keystone

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<v Speaker 1>again is importing some of the dirtiest fuel on the

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<v Speaker 1>planet from the baking crude oil sources in Canada. UM.

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<v Speaker 1>And so the targets so far I think have been

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<v Speaker 1>chosen because they do represent a major investment in fossil

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<v Speaker 1>fuel infrastructure. That's of course driving the climate crisis more

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<v Speaker 1>so than just suing on every single pipeline everywhere. I mean,

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<v Speaker 1>there are you know, a lot of pipelines in service

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<v Speaker 1>that are not being sued against. The n Bridge line

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<v Speaker 1>number three is another big one coming down out of

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<v Speaker 1>Canada and through the Upper Midwest, and that's very much

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<v Speaker 1>in litigation. But I'm not seeing that, you know, environmental

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<v Speaker 1>groups or local groups are suing and every single pipeline

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<v Speaker 1>in the country that's that doesn't seem to be happening.

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<v Speaker 1>What is it with the Army Corps of Engineers? Have

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<v Speaker 1>they always been so? It seems slipshod in the way

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<v Speaker 1>they perform these environmental reviews. No. In fact, the Corp

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<v Speaker 1>of Engineers has a pretty good track record defending their

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<v Speaker 1>permit decisions before the Trump administration. Not to say they

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<v Speaker 1>have haven't lost they they they do occasionally lose these cases,

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<v Speaker 1>but nothing like what we're seeing now. Um And I

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<v Speaker 1>don't think the professional staff of the Corps of Engineers

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<v Speaker 1>is the problem. I think it's the political appointees above them.

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<v Speaker 1>Remember that the Corp of Engineers as part of the

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<v Speaker 1>Department of Defense and the Department of the Army. And

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<v Speaker 1>so by the time you get way down into the

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<v Speaker 1>rank and file career people in the Corps of Engineers,

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<v Speaker 1>they're being erected what to do. It is very much

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<v Speaker 1>a hierarchical military style organization the core of engineers. So

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<v Speaker 1>when they get directions from above, even if they don't

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<v Speaker 1>like them, they'll follow them. Um and in these cases,

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<v Speaker 1>they're following them right into an injunction with the Dakota

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<v Speaker 1>Access pipeline. I recall, I'm sure most listeners recall that

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<v Speaker 1>there were protests that went on for months at the site,

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<v Speaker 1>you know, supporting the American Indian tribes and even support

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<v Speaker 1>from celebrities. And this is also being looked at as

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<v Speaker 1>not just environmental justice win, but a social justice win. Yes,

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<v Speaker 1>that's true. Yes, I mean, you know, you're talking about

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<v Speaker 1>you know, Indian reservations, the Sioux tribes in the Dakotas,

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<v Speaker 1>with some of the highest unemployment rates in the country,

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<v Speaker 1>the worst public health services in the country, they're suffering

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<v Speaker 1>disproportionately from the coronavirus pandemic as well as many other

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<v Speaker 1>environmental impacts. And um, you know, so there's we're watching

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<v Speaker 1>the result of the Black Lives Matter movement, but it's

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<v Speaker 1>now beginning to incorporate the rights of Indigenous people and

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<v Speaker 1>the and the problems that they're suffering. So the Dakota

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<v Speaker 1>Access Pipeline has more to do with the direct impacts

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<v Speaker 1>on their water supply and the and the judgment you know,

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<v Speaker 1>basically said your analysis of what would happen if there

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<v Speaker 1>was a spill from this pipeline, and of course pipelines

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<v Speaker 1>do spill frequently, um your ability to detect that spill,

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<v Speaker 1>to correct it, to stop it, to protect that water supply.

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<v Speaker 1>It's your analysis just as two weak, and it's been

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<v Speaker 1>criticized by a number of experts once you put it

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<v Speaker 1>out for public comment, and yet you didn't on to

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<v Speaker 1>the criticisms You've got. All of that is systematic with

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<v Speaker 1>regard to the way facilities are cited in minority communities,

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<v Speaker 1>including tribal uh communities, and their their rights, both their

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<v Speaker 1>sovereign rights. In some of cases these reservations have the

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<v Speaker 1>rights of a sovereign are not being respected, they're not

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<v Speaker 1>being consulted in the way they should be, and so forth.

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<v Speaker 1>So Dakota Access Pipeline has all kinds of elements it's

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<v Speaker 1>got climate change, it's got environmental justice, it's got legal

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<v Speaker 1>compliance with the National Environmental Policy Act issues, It's got

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<v Speaker 1>a whole mix of things going on. Are there any

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<v Speaker 1>other pipeline projects around the country that have social justice

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<v Speaker 1>issues that you can name or or you're just talking

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<v Speaker 1>in general? I think Enbridge Line number three is it's

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<v Speaker 1>called that up in Minnesota is being opposed by um

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<v Speaker 1>tribal interests because it's crossing reservation lands, it's affecting some

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<v Speaker 1>of their wetlands and streams that they are part of

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<v Speaker 1>their their natural resource base for some of these communities,

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<v Speaker 1>fisheries and so forth. So that that's one that certainly

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<v Speaker 1>combines a number of these environmental justice issues. The the

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<v Speaker 1>Atlantic Coast Pipeline did as well, because they were going

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<v Speaker 1>to put a compressor station for the pipeline in a

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<v Speaker 1>black community in Virginia. And now that that pipeline has

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<v Speaker 1>been scrapped, of course that compressor station won't be built.

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<v Speaker 1>But that was another element of the fight over the

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<v Speaker 1>Atlantic Coast Pipeline. Thanks for being on the Bloomberg Law Show. Pat,

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<v Speaker 1>as always, that's Pat Parento, a professor at the Vermont

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<v Speaker 1>Law School, and that's it for this edition of Bloomberg Law.

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<v Speaker 1>Remember you can always get the latest legal news are

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<v Speaker 1>Bloomberg Law podcast You can find them on iTunes, SoundCloud,

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<v Speaker 1>or if Bloomberg dot com slash Podcasts slash Law. I'm

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<v Speaker 1>June Grosso. Thanks for listening, and remember to tune to

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<v Speaker 1>The Bloomberg Law Show every weeknight at Champion Eastern right

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<v Speaker 1>here on Bloomberg Radio