Rep. Cramer discusses the Dakota Access pipeline, what it’s like advising Donald Trump, and his views on having a national energy policy
On Sept. 16, a federal appeals court ordered a halt to construction of a second portion of the Dakota Access oil pipeline in North Dakota.
Friday’s order comes on the heels of the federal government’s Sept. 9, 2016 announcement that it would deny pipeline construction from taking place on U.S. Army Corps of Engineers land under and around Lake Oahe. That order from the Obama administration was in response to District Judge James Boasberg’s denial of the Standing Rock Sioux tribe’s request for a preliminary injunction to halt construction of the $3.8 billion four-state pipeline.
A growing protest in recent weeks was begun by numerous Native American tribes who are at odds with the pipeline because of a tribal burial ground and other questions concerning the route that was approved. Tribal protests have burgeoned into a camp of 4,000—with protest participants coming from as far away as Europe, according to ABC News.
“A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit said in a ruling late Friday that it needs more time to consider the Standing Rock Sioux Tribe’s request for an emergency injunction,” the Chicago Tribune reported. “Friday’s ruling stops construction within 20 miles on either side of Lake Oahe.”
The $3.78 billion Dakota Access pipeline is fully permitted for construction, following more than two years of design, planning, permitting and public comment activities. The idea of the pipeline is to transport approximately 450,000 BOPD of Williston basin Bakken/Three Forks crude oil, with a capacity as high as 570,000 BOPD. Destination is Patoka, Illinois, where shippers can access markets in the Midwest, East Coast and Gulf Coast regions.
During construction, Dakota Access pays substantial state sales taxes to North Dakota, South Dakota, Iowa, and Illinois, and it will pay property taxes to the four states once the pipeline is in service. According to the sponsor, Energy Transfer, construction employment is expected to hit 4,000 construction workers per state for the 1,168 miles of 30-inch pipeline.
On Friday, Sept. 16, Oil & Gas 360® spoke to Congressman Kevin Cramer, North Dakota, about the recent trouble the pipeline is having in his state before it can start moving oil.
OAG360: Do you think the pipeline will still be built regardless of the halt of work by the federal government?
U.S. Congressman Kevin Cramer – North Dakota: I think DAPL will be finished due to the investment and amount of construction already completed. Regardless of short-term decisions, I don’t see how you can’t eventually finish the pipeline.
In the short-run, the question is whether the three agencies’ review will further delay the project by implementing a full-blown EIS or whether the review will approve of the process and apply any changes prospectively rather than retrospectively. I’m optimistic that [the work] will be up and running in a few weeks.
OAG360: It sounds like the Standing Rock Sioux chose not to talk with Dakota Access during the permitting phase. Do you have any insights on why that was?
KC: I think the appropriate people at the tribe didn’t pay enough attention to the proceedings, but I don’t have any insight as to why they chose not to meet with the Corps of Engineers. I will say that the government to government expectations of tribal governments can sometimes get in the way of participation in more mundane, routine aspects of the regulatory process, which is unfortunate because they miss the opportunity to have their say in the matter.
U.S. Representative for North Dakota Kevin Cramer
OAG360: Do you know what the status of negotiations is right now, if there are any?
KC: I don’t know what their status is, although if something could be resolved to the tribe’s agreement, that would make it difficult for federal agencies to continue their objections, which is a priority for the company.
OAG360: Media descriptions of the protest camp make it sound like a big outdoor “event.” Do you think colder temperatures and harsher weather will cause it to disperse?
KC: That is something to consider given the presence of tribes from the Southwest. I’ve advocated from the beginning that the court issue a special use permit or free speech zone to the tribe for peaceful protest.
This would set clear parameters and rules of engagement so that some discipline can be brought to bear both by law enforcement and more importantly by natural incentives of liability and indemnity. We’re expecting that the court will make a final determination soon on the request for a special use permit for the protest, realizing that there are a number of liability issues there.
OAG 360: How do you balance the needs of your district constituents with the needs of the Native American community?
KC: It’s very simple to me and I try to keep it very simple and that is to keep it within the letter and spirit of the law.
In other words, I try not to mix emotion in with a legally permitted pipeline. When that happens, you run the risk of causing capital flight and a lack of critical infrastructure investment, which is frightening to me. We need this pipeline, we need to be able to move another 450-500 thousand barrels of oil per day in the safest most efficient way possible, especially given the smaller margins for the crude itself.
Beyond that, we need to both calm the markets and we need fossil fuel and transportation projects to be supported by ratings agencies. If this project can get upset by protests, what’s to say that a railroad track or a grain terminal or a natural gas facility or even a wind farm cannot be derailed?
Here, you have a legally permitted pipeline, an injunction request that was denied, and a very thorough opinion, written by a federal judge nowhere near North Dakota, who has a very good understanding of the Historic Preservation Act and the Environmental Assessment process under NEPA and even opines that tribal consultation was done to the letter of the law, if not a little beyond that.
If you stick to those facts, you have a strong case here. On the other hand, if there are some things prospectively that can be improved upon with regard to government to government consultations and relations, that’s certainly worth exploring and discussing as well.
OAG360: Do you think that this protest has been taken over by the professional environmental movement?
KC: I believe that some really good people in leadership and [others] throughout the Standing Rock reservation have been coopted by movements such as Earthjustice that do not have their best interests in mind. The tribe’s concerns about the pipelines’ proximity to their water supply are legitimate if they are consistent. The problem with their position now is that while they continue to be concerned about these issues, Earthjustice has expanded those concerns dramatically and has become their law firm. I think that’s all the evidence needed to show that the issue has been coopted by out-of-state interests.
The other thing to consider is that all the individuals arrested at this point for trespassing, disorderly conduct, vandalism, and even assault as seen in the incidents of rock throwing, have not been from North Dakota. This clearly demonstrates that the protest has gotten beyond the initial spirit of the tribe, which is why I support a decision to issue a special use permit to put Standing Rock back in charge of a free speech zone and give them the tools to reassert some regular order into the process.
OAG360: You’re working as an energy advisor to Republican presidential candidate Donald Trump. How has that experience been?
KC: It’s interesting. It’s a lot like being a congressman who gets quoted a lot and you hope that it catches on. Early on I was writing a lot of stuff to him and to the campaign detailing my thoughts and opinions on what a good policy would look like and what I promote legislatively.
It’s certainly a new experience for me, since I’ve known presidents and candidates before but I’ve never been this up close to the policy side of a campaign, and watching it come to fruition in speeches and statements has been very rewarding.
OAG360: Mr. Trump has recently expressed an opinion that a community that doesn’t want fracking should be able to vote on it. Have his views on that changed it all?
KC: I’ve counseled against that position since he made that statement. I think he has the right basic belief regarding state and local control but I’ve warned that you have to juxtapose that with private property rights, which is a constitutional issue. This is tricky in energy and resource development as well as other areas. The interesting thing about Mr. Trump’s discovery in this process is that several months ago, he was still advocating for federal lands remaining in federal control. Now, he’s settled on a federal/state partnership in managing lands, which I think is a good compromise between those of us in the West advocating state and private ownership and those on the far left who use the Antiquities Act to create more multi-million acre national monuments.
One thing about Donald Trump is that he is quite curious intellectually and while sometimes his instincts take him certain places, it doesn’t take long for him to understand the broader picture. I don’t know how much his positon has changed specifically on the local fracking ban issue but I think he has a better understanding that local and state regulation is one thing, but giving local voters the right to ban something on private property runs up against some constitutional principles.
OAG360: What do you believe the U.S. needs as far as a national energy policy?
KC: It’s an interesting question because I don’t understand why we as conservatives think the federal government, if we go to a national energy policy, will do that very well when we don’t think they do many other things well.
What’s needed more than anything is a review of governance policy, meaning all of the regulations and the intrusion of the federal government on states’ and property rights.
We’ve had a lowest-price energy policy for years regarding electric generation, which is why we regulate rates and not fuel sources. Consumers and markets will determine energy policy; what we need is a less intrusive regulatory regime so that those markets can actually work.
To the point that we need legitimate environmental protections, through a gentler regulatory touch and innovation we’ve fixed a lot of challenges such as sulfur dioxide, nitrogen dioxide, mercury, and smog in this country without killing the industry. I think we need to get back to the lighter regulatory touch of a non-federal, market-driven energy policy.
If we need greenhouse gas reductions standards, whether the country wants them or science demands them, we can work with industry, states, and environmental interests to set reasonable standards and allow innovators to find appropriate remedies and technologies rather than picking fuel sources.
