The Atlantic on the Presidential Memorandum on DAPL and KXL

Here.

“It’s the flip-side of the question everyone was asking last year, ‘Why doesn’t Obama just put the kibosh on Dakota Access?’” said Sarah Krakoff, a professor of tribal and resources law at the University of Colorado Boulder. “Well, it’s not really his role. It’s the Army Corps’s role, and that’s still true today.”

“Trump can’t, with the stroke of a pen, just make the Dakota Access pipeline happen. He just can’t. He doesn’t have that authority. It’s his agency’s authority, and he can’t revoke the laws that the agency just found that it has to comply with,” she added.

She added too that the executive orders seemed to be written in a typical way. Instead of commanding agencies to ignore congressionally passed law, the orders request that they expedite or reconsider previous judgments. “Executive orders are legal orders—they’re law—but they can’t contravene legislative enactments. So an executive order can’t say, ‘Ignore the [National Environmental Policy Act] and give me a pipeline,’” she told me.

“If the federal law gives decision-making authority to a particular official, that official has to make the decision,” said John Leshy, a professor of real property law and a former general counsel to the U.S. Department of the Interior. “But there’s some murkiness about what the president can do. The decision maker can say no, and then the president can fire them and replace them with someone who would. But that takes time.”

Krakoff added that it would attract judicial suspicion if the Army Corps of Engineers suddenly decided that it didn’t have to make an environmental-impact statement for the Dakota Access pipeline after saying that it did just weeks ago.

“It would be hard for them to turn around on a dime and say, ‘We got this piece of paper from the president and now we don’t think that’s necessary,’” she said. “If the agency were to take a different route, legally, now, I would strongly suspect that that would be subject to litigation.”

Presidential Memorandum on the Dakota Access Pipeline

We spend a lot of time waiting for official documents to post to make sure the information out there about them is correct. Sarah and I were waiting all afternoon for an “official” link to this memorandum, and then I realized the link would be to the website of the White House Press Office. So. For the record, I personally saw the actual document first on Twitter from Lael Echo-Hawk (@laeleh), and then on Facebook from Bryan Newland, who had it from Nicole Willis. It does appear from the text that it will eventually be published in the Federal Record, probably tomorrow or the next day.

Here is the Memorandum (technically not an Executive Order. For the quick and easy explanation of the difference you can look here, but probably should know that President Obama’s actions in Bristol Bay, for example, were also a memorandums).

This Memorandum does not itself try to eliminate the Environmental Impact Statement (EIS) process for DAPL, but asks the U.S. Corps of Engineers to expedite it and to consider rescinding or modifying the December 4th Memorandum posted here.

Standing Rock’s press release in response is here.