Dakota Access Pipeline Still Faces Threats

Joining me as Brandon Barnes, Bloomberg Intelligence Senior analyst for energy litigation, Brandon tell us why the judge decided not to shut down the pipeline. Well, there's a long underlying history here with the same court and the same judge dating well back into but this decision was predicated on the fact that judge didn't believe he had the authority to go so far as to stop the pipeline based on the injuries that were being complained of by the

challenges here, which were some of the tribes. Why did you think he had the authority? So a number of the issues that the tribes had brought up as it relates to the environmental review that had been done. Um that triggered this review to go back to the U. S. Army Corps were possible injuries um and wouldn't rise, according to the court, to this level requiring a shutdown. So you need an irreparable harm. You need you know, likelihood that goes along with that in terms of the harm

that's out there, and not just a possible harm. The the injuries that or the potential injuries that were being claimed by the tribes were related to what if scenarios that are you know, have chances attached them there you know, one in a hundred thousand, one in a million based

on industry statistics. So this was a you know, the likelihood of any of these issues being actually occur ring and the harm accompanying it actually occurring was so low that the judge couldn't then attach that to the legal standard for putting an injunction in place. The standing Rock Sioux Tribe has been fighting this for years. Is it likely that they'll appeal this decision? You know, that's a I don't know that they've come out publicly as to that.

That question, however, certainly would would preserve their rights if they were going to appeal. Um. They've they've essentially won everything they've they've tried except for shutting the project down.

So they have in hand the idea that there is no federal easement here and the because the environmental review that underpinned the easement for this lake crossing was judged in firm and they got that confirmed by the Court of Appeals in April, but neither but the lower court was not willing to go further to at b I. It's unlikely that the Court of Appeals would would overturn the lower court here because they've kind of gone with what lower courts said to date for the most part.

But certainly you know, that may be part of the litigation strategy for the TRIST but it's in our view it's unlikely that's going to be successful. Since federal judges have issued three different decisions concluding that the Dakota Access Pipeline was permitted in violation of the National Environmental Policy Act. So to most people, the question would be, well, if it's in violation of NIPA, why is it still allowed

to go on? That question has been sort of bandied about as a remedy issue back and forth between a couple of courts and It's an interesting question because it's not you're right. Typically, you know, NIPA violation is pretty easy to kind of address, and that's where the court, the lower court originally tripped up because what we're talking about here isn't necessarily a permit. It's actually it's you know, the land right. It's a property right because it's an easement.

The federal government owns Lake Owahi because they created it back in the fifties via you know, a dam, and so the permission to go underneath that lake and use that path be an easement or land right grant goes through a different regulatory structure under Army Corps. And so what in fact has happened is, even though there's nep A violations, there's a process that Army Corps has to decide what happens to an encroachment, which is, you know,

basically an illegal easement. You're on our land with something some structure without permission, and so what Army Corps decided to do is nothing. And what that does is if they make no decision on what to do with an encroachment, and there can be no sort of legal ramifications after the fact, and that's something the judge lamented in his opinion most recently, how does the Army Corps just decide

not to do anything? Don't they have a responsibility? Well so, they certainly do have a duty to do something, but their take on this is revolved around, Look, you ordered us to go back and redo this environmental assessment and turn it into a much more robust environmental impact statement, and that's going to take time. In fact, it's going to take us until March at this point. So why don't you let us do that and then decide what

to do? And you know, that's sort of a it's a good argument because it leaves the court and the challengers saying, well, you know, we can't force you to make that decision on the current status of when we forced you to make another report so and more robusts.

So the interesting thing here, I think with all of this is that there has been no real change in heart with the change in administration in terms of how Army Corps responded, saying that they will still continue to support their stance, which is sort of a status quote do nothing stance, but they have said that if something comes up in this more robust process, they're certainly willing

to revisit. So the judge sort of scolded the Biden administration for refusing to take a clear stance on the pipeline. I had thought, maybe I have my pipeline is confused. I had thought that in his first days in office, Biden had issued an executive order about the Dakota Access pipeline.

He issued an executive order restending the Keystone Excel permit, which was well within his powers to do so, because he's basically doing the mirror image of what President Trump had done for Keystone, which is exercising executive power to issue a permit to cross the border for an energy project, and by circumventing sort of the U. S. State Department process which President Trump did to issue that March I think twenty nineteen permit presidential permit um that set that

permit up for being able to be rescinded by President Biden with very little, UH procedure or oversight around it. Um. That is not the case of the Code Access because right now we're not in a place where yet, you know, Army Corps can do something because they they've got this pending environmental review on their plate um. So they could have taken more of a stance in front of the court here, but they did not, and maybe that's sort of in deference to the work that the Army Corps

done over the years. Anyway, cording to analysis last week by clear View Energy Partners, it said Dakota Access opponents could also get creative in the courtroom and raise an Administrative Procedure Act claim that challenges the Army Corps in action in response to the encroachment on federal land. Is that a possibility in your mind? I think it is. I think so the form they could more formally raise that as an issue, um, it is. It has been discussed at the lower court as but only part of

the remedy phace. So it's really you know, it's kind of we're talking about legal shades of gray here. But to really get at and get a ruling of final ruling from court on the issue of Army Corps not moving fast enough or moving at all, um, they would have to file that sort of a separate claimant that I'm within the remedy portion of the lower court in

this bigger case. Uh, you know, I think you could do that, but the Army Corps is going to be given a lot of leeway here and the fact that they've got a pending environmental review that they're doing, and that's going to give them a much better set of information and data to work with because it's supposed to be more robust. UM. But environmental groups have been you know, this this case and many others involving pipelines, have been very creative and they have not shirked on spending the

resources on these different cases. I wouldn't be surprised if that happened. I would not give it great odds of success at this point. Kind of thinking it through theoretically though, so was this lawsuit the greatest threat to the pipeline? Yes, in this the short answer at the at at all points, this was really the threat because it reaches all the

way back to preconstruction and permitting. UM. Now that this is sort of out of the way, although obviously appeals are available, the newest threat is what happens with a President Biden administration Army Corps when they get the chance to do take over this environmental impact teament. How does

that play out? They've mentioned this is going to be probably at least until March until we see anything from them in terms of a final decision, But they've got a lot of works to before them, which includes consultation with various parties, including the Native American tribes, and they've got a lot of public comments to take. So that process is going to play out, and there's a lot of uncertainty there around what the end products will look like.

And so now the biggest threat is probably outside of the court is now back in the agency hands. So let me ask you this, the Army Corps of Engineers. I sort of think of the Army Corps of Engineers as being not partisan, but does their position change depending on the administration or the way they approach things change? You know? Do you know I would have thought of a lot of different agencies non Parson before the past

few years. I feel like we've had a bit of a seismic shift on that if you think of what's

happening with FIRK these days as well. But you know, Army Corps has been involved in this bankline since before it was built, and just based on who was in office pushing the button or directing Army Corps policy, we had a change at the snap of a finger between the Obama administration the Trump administration in terms of what was being ordered done on the ground for these environmental reviews, and you know, for Army Corps, they're really just these

are procedural changes, not necessarily substanti decision making changes. But you know, those can those can mean a lot of different things for these projects once those play out in

the courts after the fact. So I think I would never say the Army Corps is partisan, but I think that they have the ability to look at something like an environmental review and the information that comes in from a different angle if they need, if they're directed to, which I think that wouldn't be surprised if that's how this administration would would want them to go. So bottom line, we can say that the Dakota Access pipeline is in the clear for now until the spring of I think

that right. I think bottom line, they're in the clear until at least then, and then you know, and then it's back into the uncertainty around around shipping anything via pipeline these days, very difficult to to be able to kind of get any certainty out of the midstream world. Thanks so much for being on the Bloomberg Glass Show, Brandon. That's Brandon Barnes Bloomberg Intelligence Senior analyst for energy litigation.

The Supreme Court sided with the government on Monday and found that an immigrant to was wrongfully deported in can be charged with re entering the country illegally. Joining me is Leon Fresco, a partner at Hollandon Knight. The facts here are a bit confusing. Tell us about the applicant here the plaintiff. Sure, so, the plaintiff was a man named Refudio Palomars Bantiago, and he was a person who had a green card when he lived in the United States.

But what happened was he was convicted of a felony dry thing under the influence charge, which back then was thought of as a crime of violence. So it was considered an aggravated felony. And because of that, he was deported to Mexico. And he was deported to Mexico. But then what happened was in two thousand four, there was a U. S. Supreme Court case called Leatal versus Ashcroft, which said that a driving under the influence conviction isn't

a crime of violence because you're not intending violence. Yes, violent acts may happen with your car while you're driving under the influence, but the person really only intends to drink and drive, They don't intense actually hurt somebody, So you can't call that a aggravated felony crime of violence. And so what happened was this person's conviction, Mr Palomar Santiago was actually no longer under the basis for a

removal order. Meanings, had Mr Palomar Santiago not been removed, they wouldn't have been able to remove Palomar Santiago because the conviction wasn't a proper basis for his removal. So we fast forward and in ten, Mr Palomar Santiago actually crosses illegally into the United States and he's prosecuted for this, and they say, you can't cross the United States illegally

if you've already been deported. That's a crime. And so what happened was he tried to make a very creative defense, which was wait a second, I wasn't deported because the deportation order against me was invalid. If you had tried to enter this deportation order, now there's no way you could have entered it. And so because of that, there is no way I should be allowed to be prosecuted for entering illegally with a removal order because I don't have a removal order. So tell us what the Ninth

Circuit ruled. So what happened was there's a split in the circuit, and every other circuit held that you can't challenge a prosecution on the basis of illegally re entering with a removal order. If you are saying that, it's because the removal order in the past was now subsequently invalidated by a Supreme Court decision. So that's what the

other circuits held. But the Ninth Circuit held that, yes, you can, you can challenge that order because what had happened was the conviction being vacated makes it so that there actually is no removal order to challenge, meaning you're not actually challenging a removal order. There just is no removal order. It doesn't exist. Hence, what happens is you can't be prosecuted for entering with the removal order because the removal order has already been eliminated by operation of law.

That was the theory that the Ninth Circuit had put in the play, and so the Supreme Court needed to resolve the circuit split. I know there's a circuit split, but it seems like this scenario wouldn't apply in that many cases. It depends because it currently doesn't apply in a lot of cases, and now because of this Supreme

Court holding, it won't apply in many cases. But interestingly, if the Supreme Court that held that you can re enter the United States illegally in order to sort of reclaim your green card status because your removal order goes away, you might have seen several thousand individuals try this, because there's a lot of people who have been deported who subsequently because of this lecal drinking and driving case, and then there are subsequent cases involving drawn and burglary and

possession of tools and this kind of thing. There's a lot of people, I would say, at least in the tens of thousands, who have been deported from the United States in the past with orders that are now no longer valid removal orders and so, and what they would have gotten was a message that would have said, just enter the United States. Find some way to enter. So that's how they would have done it, to try to reclaim their green card status instead of trying to follow

a more formal process. Which is what's known as the motion to reopen process, which gives discretion to the Board of Immigration appealc either granted or not granted. And so that's the issue is that is not a certain thing.

It requires discretion. Whereas if this decision had been decided in favor of the foreign national, then it would have been a guarantee thing that if you enter the United States, you're triggering back your green card, because the basis for saying that you can't be convicted under the statute is that you don't have a removal order meeting, you automatically got your green card back. So tell us what the

Supreme Court decided. So what's the Supreme Court decided was that the statute the way it's written, which requires three different elements in order for someone to challenge a removal order as part of one of these persecutions, is a very clear statute, and that statute requires all three things

to be done by the person who's challenging it. Number One, that they had to exhaust any administrative remedies that they had before challenging it, meaning that when the removal order was first given, they had to appeal the removal order

to the Board of it Aggration Appeals. Second, that the removal proceedings improperly depride them of the opportunity for judicial review, meaning not only did they have to appeal to the Board of Immigration Appeals, they actually have to take a petition for review in the Court of Appeals and lose

that too. And then three, that entry of the order was fundamentally unfair, and so they had already won under that third prong that it was unfair because obviously the court decided that the basis for the removal order no longer existed. But these individuals had lost under the first and the second prong as well everyone else, because everyone who's gone through the criminal process will have had an opportunity to administratively exhaust the remedies and go to the

Court of Appeals. And so from that standpoint, what the court is basically saying is this isn't the way we wanted to challenge and the removal order that became invalid. What we wanted to do is to file these oceans to reopen in the Board of Immigration Appeals. We don't want to just meeking in the country and then saying your green card has been returned because you snuck into the country. So now is it surprising that this was unanimous and that the majority opinion was written by Justice Sonia.

So to Mayor, the reason I think this ended up being a unanimous opinion is for two reasons. One, I do think there's a desire amongst the members of the court, given a polarized things, are to try to compromise in cases where compromise is available. And here all the Court really did is say the statute says what the statute says. If you want to come back later and to on a theory that it's unconstitutional in a particular case because it's so unfair that this person should have an opportunity

to get their green card back, do it. But what you can't do is do what the Ninth Circuit said and say that the statute doesn't really mean what it needs. Yes, it does. And so if you think that the result is an unconstitutional, you aconian result, you can come back and sue and say that and say the result here was unconstitutional because it's so aconian it violates the process. You can do that. But what you can't do is

reinterpret the meaning of a very clear statue. And so that's Why I think you saw the nine to zero is the ruling ends up being very very narrow. It doesn't go into the constitutional realm. It leads that for another day and tea. It provides a sign of good faith from the more liberal wing of the court, we will join you when we can. We're asking you on

a future case to join us when you can. And I think you've seen that in a couple of these other immigration cases, where you've had Justice Course that reach out, where you've had Justice Robert reach out, where you've had Justice Cony Barrett reach out, and so I do think you're seeing some of this fourth trading going on in the immigration real This case span the Trump and Biden administrations, and the Biden administration has changed positions in several cases,

but not in this case. Why do you think it chose not to change positions in this case? I think for the same reason that Justice sort of myorrothy opinion here, which is that the statute is clear. So when you have a statute that's clear, the Department of Justice, even if they don't like what the statute says, has an obligation to defend the clear statute. There is a separate

question as to whether the statute is unconstitutional. But the way that should be resolved, in my view, especially by this Department of Justice, is to just instruct the Board of Immigration Appeal whenever you have a motion to reopen on the basis of a conviction that no longer is valid, you should reopen the case and give the person their green card back. And that's the way they can solve that,

and they should issue that guidance. I would encourage them to do that, and that way you eliminate this horrible, perverse incentive for the way people to get their green card back would be to sneak across the country. What are the long term implications here as far as federal prosecutors, are they more likely to pursue criminal reentry charges? Yes?

I think Now what you will see is that as the immigration enforcement portfolio moves away from the interior, because the Biden administration doesn't want to be deporting people who have roots into the United States, and as that portfolio moves to the border, what you will see is more of these prosecutions in cases where the government has spent resources in trying to already remove someone from the United States.

And what I think will be key is this balanced perspective where you say, the reason we're doing this is because you have this other avenue available to you, and so you should have used this other avenue. You shouldn't be speaking across the border. That creates all kinds of problems with people trying to speak across the border that we'd rather prevent. Has there been a difference in enforcement

under the immigration enforcement under the Biden administration. Absolutely, there has been a huge difference in enforcement, and in fact, there's actually some new stories today about this difference in enforcement, about how the numbers are at historic lows with regard to interior enforcement, meaning people who are living in the United States being placed into removal proceedings and being removed

outside of the United States. You're seeing dramatic decreases, and that almost historic decreases that you haven't seen for twenty or thirty years. On that frame, there used to be this rule of thumb that Ice would or Sugar could deport four hundred thousand people per year, and we're talking about maybe forty thousand this year. So it's a dramatic decrease in the number of people being removed from the

United States. And we haven't heard much lately, maybe because there's so much other news that we haven't heard about the situation at the border. Is it still untenable at

the border? Well, the complication with the border right now is that the processing of individuals is actually moving much faster than they used to, and so it becomes a more complicated debate because then the debate becomes solely about are the numbers of individuals growing up at the border unacceptable visa the Some desire to keep that number down to zero, but it's not a problem anymore in terms of the processing speed of getting people out of facilities

that have terrible conditions, that's moving quite quickly through the process. And so there's nowhere you can film as a video group to show a border catastrophe right now. And that is actually creating quite a political conundrum because you have individual was on one end of the political spectrum saying, yeah,

but that doesn't matter. There's still going to be over a million people coming near illegally entering the United States New Years, and so they'll make, from an American perspective, a claim that that's unacceptable, and you'll have other individuals saying, what is the problem they're going to go through the system and hopefully they will show up the court and if they win, they'll say and if they lose, they'll

be deported. And so that will be the argument on the other side, and it will just be up to the American people to decide if that's the way they wanted the southern border to be processed or that, because that's basically what we're setting up to have happened for the remainder of the year, a million compared to what in other years. So historically talking about the nineties and the first decade of the thousands, that was what we were seeing. We were seeing about a million people being

apprehended trying to cross the border. Those numbers decreased dramatically, both of them of the Obama administration and the Trump administration as different wall mechanisms inventing mechanisms to place, and twenty thousand border patrol people were installed into the southern border, and so those numbers had decreased, and then COVID had made it dramatically decreased. And so it just depends what

you're using as your baseline. If you're using the last year of the Trump administration, well then certainly that's going to be a huge difference because of the last year of the Trump administration. We were talking about one hundred thousand or so people being allowed to enter through the southern border and make their claim, So we were not

talking about a lot of people. But if you just reverse it to the first year of the Trump administration, we were talking about maybe four or five hundred thousand people. So it just depends what you're talking about. Now, it is greater than a year during the Trump administration, that's certainly true, but it's not greater than it used to be under the Bush administration. And so the question is

just what is your historical perspective for this? And finally, are there any other immigration decisions coming from the Supreme Court this term? Not this term, but I think in the future you're going to be looking up, I think for the BCA litigation, which is gonna be the big

litigation that's coming. Uh, that's going to be coming. And then as some of these you know that we will come from Judge Ayman in the Southern Districts of Texas that he invalidates DACCA, and then that works its way up to the Court of Appeals of the Supreme Court, So you'll be seeing that litigation, and then you'll also be seeing some other litigation moving forward on these issues of state challenging what the Biden administration is doing in

terms of its prosebutorial discrisis on immigration enforcement, and so those we'll be talking about those in the in the upcoming months. Thanks for being in the Bloomberg Law Show. Leon. That's Leon fresh Go of Hollanden Knight and that's Difference edition of the Bloomberg Lawn Show. Remember you can always get the latest legal news on our Bloomberg Lawn Podcast. You can find them on Apple Podcasts, Spotify, and at

www dot Bloomberg dot com, slash podcast slash Law. I'm June Grosso and you're listening to Bloomberg