Archive for the 'Business Law' Category

DAPL: Protest Camp Burned to the Ground, What’s Next?

A few weeks back, heavily armed and outfitted police took the final steps in clearing out the camp which has housed Dakota Access Pipeline (DAPL) protesters for over a year; carrying out a raid removing the last of the peaceful protesters from a burnt down camp

The protest has, from start to finish, been totally peaceful on the part of demonstrators, however the final raid is just one of many intense and heavily armed encounters between the protesters and police or DAPL security personnel.  While in the immediate wake of the raid many thought the police themselves burnt down the camps, it has surfaced that the reality of the situation is that the demonstrators themselves held a ceremony in which they burned down their tents in order to not see them destroyed by others.

North Dakota Gov. Doug Burgum had set a final date by which all protesters needed to leave the camp or face arrest.  Those who left prior to this cutoff date were told that they would not face arrest and would be provided with vouchers for buses and lodgings away from the camp.  While the camp had once housed as many as 10,000 people, when the Gov. set his cutoff date only that number had substantially diminished.  The majority of the remaining protesters had left the camp after the ceremonial fires the day of the cutoff, marching out arm in arm.  When the raid began, counts left those remaining between forty and a hundred demonstrators.  The police moved in on these remaining few the day after the cutoff, February 23rd, and arrested dozens of people with at least one recorded arrest appearing to seriously injure a peaceful protester.

DAPL

This raid has come less than a month after President Trump’s executive order reversing an Obama administration order to stop construction on the pipeline.  The Standing Rock Sioux had long argued that the pipeline violated their treaty rights by failing to properly consult them as to the construction of the DAPL through their ancestral lands–lands they had the right to protect under both previous court rulings and treaties between the tribe and the government.  They argued that the environmental impact of the pipeline would render much of the drinking water their tribe uses undrinkable.  There is some serious evidence to support their concerns, the original plan for the pipeline was changed to this new location through their lands after fears of pollution made the pipeline shift away from a populated city.  Just last December, there was big oil spill right by where the Standing Rock camp used to be with about 130,00 gallons of crude spilling into Ash Coulee Creek and yet more seeping into the surrounding hills to potentially contaminate ground water.  An investigation was unable to provide a reason why the spill occurred so no further action has been taken.

It was because of dangers like these that the Obama administration halted the construction for a much more thorough review of the potential environmental impact of the pipeline.  Trump’s order substantially truncated that review and ordered his agencies to approve the pipeline as quickly as possible.  So with Trump’s order and the camp burned to the ground, it is easy to look at the DAPL protests as a finished battle.  However, while the camp the protesters stayed at might lay empty the struggle of the DAPL still has a number of battles still ongoing in the courts.

The Ongoing Legal Battles of the DAPL Protesters

First and foremost, the order of the Trump administration pushing through the DAPL is itself facing legal challenges from organizations supporting the DAPL protestors.  This action seeks to enforce the treaty rights discussed above and argues that the truncated approval process continues to violate these treaty rights.  This lawsuit will be the forefront of the efforts to halt work on the DAPL.  However, it is far from the only ongoing legal battle stemming from the DAPL and the actions of the government.

Lawsuits have also cropped up, some months back over excessive force on the part of the police and DAPL security in how they’ve dealt with otherwise peaceful protesters.  Most have seen the videos of high-power hoses, dogs, and pepper spray used on non-resisting protesters.  As mentioned above, the most recent raid resulted in what appeared to be a serious hip injury to a protestor.  These ongoing lawsuits are based in a claim of excessive force, a cause of action which generally requires the plaintiff to show that the police used more force than was reasonably necessary.  A determination of how much force is necessary looks to many factors, such as the amount of force used, whether the force was used against an armed suspect, and whether the suspect was subdued prior to using the force.  Another element commonly looked to in these cases is whether the force was in line with police procedures for use of force.  Where it is, it can be very difficult to succeed in such a case.

The force used by police and DAPL security is often well documented through video evidence.  However, these type of cases hinge on the unreasonableness of the amount of force.  This can be very tricky to prove in court.  What’s more, while many criticize the arrests as a violation of the First Amendment right to assemble the legal reality is that, while the arrests certainly appear to use much more force than necessary for peaceful protestors, the right to assemble is not without some exceptions.  The government can put neutral restrictions (restrictions not targeting a specific group or viewpoint) on the time, place, and manner of assembly.  This often takes the form of permitting for protests.  Refusing to grant such a permit may be a violation of the right of free assembly, however the right does not grant as much protection to these unpermitted protesters as many seem to believe–regardless of how good their cause may be.

Finally, there are also lawsuits challenging the police use of warrants to seize and search the Facebook accounts of DAPL protest organizers.  These lawsuits hinge on the warrants violating constitutional protections by being too broad as to be permissible and chilling political speech.

Unforeseen Consequences of the Protests

While the legal battles in the court rages on, the protests will also have a lasting effect due to lawmakers around the country.  In an unfortunate turn of events the DAPL protests, along with the increasing number of protests around the country, have led to laws being passed making it harder to protest.

Just recently, we discussed a proposed Arizona law which would have allowed police to arrest peaceful protestors before any crimes were actually committed, target organizers specifically, and seize assets of those who had not even yet attended a protest.  Fortunately, this bill has since been discarded, but it is far from alone.  Ten different states have proposed legislation expanding the definition of protesting, making more elements of protesting illegal, and enforcing harsher punishments against protesters.  In North Dakota, where the DAPL protesters are based, bills have been passed making it illegal for a protestor to wear a mask (even to protect the face from the elements or pepper spray) and changing rioting from a misdemeanor to a serious felony carrying a penalty of a $20,000 fine and 10 years in prison.

There is very little more American than political protest, we owe the very seeds of our nation to it.  However, we unfortunately also owe our nation to lands taken unfairly from Native Americans.  This has led to the many court cases supporting the treaty rights and land rights of tribes such as the Standing Rock Sioux.  It is sad to see the response to their protests be so violent and end in flames.  They have many legal battles ahead of them, some with a better chance for success than others.  Hopefully, the results of these legal battles will be the ultimate legacy of the DAPL protests and not a perverse response to criminalize the very thing our country was founded on–political resistance.

Trump is Giving Power Back to Wall Street with Another Executive Order

In the wake of the Great Recession of 2007-2009 and the many bank failures that substantially contributed to the recession itself, the nation was calling out for laws ensuring that banks “too big to fail” never again caused a similar recession.  Many found the idea that a bank could fail and then necessitate buyout on the taxpayers dime, and potentially deal a serious blow to the economy in the process, was particularly upsetting.  While the fury of the nation was real, and the government began the process of attempting reforms, actually putting regulations into effect which held banks to a higher standard was more of an uphill battle than one might expect–even in the wake of huge bank buyouts shaking the economy to the core.  However, in 2010 President Obama finally signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act–one of the most substantial banking reforms the nation has seen.  Now, less than a decade later, one of President Trump’s recent executive orders threatens to remove the precautions against a repeat of the many bank failures in the early millennium.

The move isn’t necessarily a surprise, Trump and those close to him have repeatedly targeted Dodd-Frank as overly restrictive and bad for business–making investing more difficult than necessary.  Trump was quoted during an open portion of a meeting with CEOs of businesses such as Wal-Mart and Pepsi stating that he would be “cutting a lot out of Dodd-Frank.”  In truth, his position is even less of a surprise given that the law has been labeled by conservatives as government meddling with the private sector since it was first made law.

wall streetSo now that Trump has come down on Dodd-Frank, it seems like a good time to explain exactly what Dodd-Frank does and what President Trump’s executive order does to Dodd-Frank.

What Does Dodd Do?

Dodd-Frank itself is an incredibly complex bit of legislation, the Act itself is over 800 pages long with over 240 individual rules.  It’s one of the most substantial financial reforms in the history of the United States.  It’s been compared to the changes that came after the Great Depression and, in fact, it includes some elements of the Glass-Steagall Act–a set of banking reforms which were put in place after the bank failures of the Depression.

Despite its complexity, Dodd-Frank’s most important changes can be fairly simply explained–although a complete understanding could fill volumes.  Dodd-Frank creates a few new agencies which ensure the stability and best practices of banking institutions, requires greater government oversight of banking activities, removes Securities and Exchange Commission reporting loopholes, increases the amount a bank must keep in reserve to guard against economic downturns, and requires banks to keep larger portions of their money invested in things which can be easily turned into cash again.  It also reintroduced Glass-Steagall, as mentioned above.  Glass-Steagall was originally a law forbidding banks from running trading operations such as those that contributed to the real estate bubble, however the law had been systematically gutted since it was introduced back in 1933.  Dodd-Frank reintroduced some of these limitations as the Volcker Rule–substantially limiting the ability of banks to run trading operations.

Where banks are particularly big, over $50B in assets, Dodd-Frank could requires annual stress tests–basically a report proving the bank could survive another recession like the one that just passed.  The biggest banks, the Chases and Bank of Americas of the world, are required to submit a report every year describing how they could be dismantled without harming the economy–basically a will for their business.

The agencies created by Dodd-Frank include the Financial Stability Oversight Council, the Office of Financial Research, and the Bureau of Consumer Financial Protection.  These all have duties regulating the banking industry and ensuring it’s stability.  For instance, the Bureau of Consumer Financial Protection is tasked with protecting the public from deceptive, unfair, or abusive financial services.  The Act also expands and changes the powers of existing regulatory agencies to some degree.

To sum it up, Dodd-Frank is put in place to make sure banks don’t go down a road that could lead to another Great Recession.  Many consider it the only truly effective law of its type to be successfully enacted after the many bank buy-outs.

Trump’s Executive Order

So what exactly does Trump’s order do to Dodd-Frank?  By itself, probably not as much as he’d like. Executive orders don’t “trump” congressional acts, they simply don’t have the authority.

Trump’s order, titled Presidential Executive Order on Core Principles for Regulating the United States Financial System, mostly puts forth seven principles of regulation which read as follows:

  • empower Americans to make independent financial decisions and informed choices in the marketplace, save for retirement, and build individual wealth;
  • prevent taxpayer-funded bailouts;
  • foster economic growth and vibrant financial markets through more rigorous regulatory impact analysis that addresses systemic risk and market failures, such as moral hazard and information asymmetry;
  • enable American companies to be competitive with foreign firms in domestic and foreign markets;
  • advance American interests in international financial regulatory negotiations and meetings;
  • make regulation efficient, effective, and appropriately tailored; and
  • restore public accountability within Federal financial regulatory agencies and rationalize the Federal financial regulatory framework.

On its face, this seems to almost support Dodd-Frank.  The Act definitely is designed to help prevent taxpayer-funded bailouts; one of the stated goals of the order.  However, a combination of context and another part of the act point in a different direction.

The order seeks to “make regulation more efficient.”  This has been a hallmark of Trump’s statements and actions, an attempt to make regulations more efficient by removing them all.  He recently signed an order requiring  agencies to identify two restriction of any type which could be removed before any new restriction will be considered–an entire order that less regulation must always be better than more regulation regardless of what it might accomplish.  That same order also puts a cap of $0 on the expenses involved in any new regulations in 2017.  With this and Trump’s many statements on his preferred approach to Dodd-Frank in mind, the Core Principles order gives agencies 120 days to identify elements of Dodd-Frank that aren’t working.

This sends a message that Dodd-Frank is in line for a pruning.  While Trump couldn’t do so explicitly by executive order, he can act through his many agency appointees to dismantle the rule in parts.  This was how Glass-Steagall was gutted decades ago.  He could reinterpret and alter the requirements of enforcement of Dodd-Frank and delay the implementation of some of its elements.  He may not even need to however, Congress itself has begun attacking elements of the law–just recently introducing bills aimed at closing the doors on the Bureau of Consumer Financial Protection.

Who Does this Help?

A complete repeal and replacement of Dodd-Frank is unlikely to leave the banks particularly happy.  They’ve already spent billions between them to ensure they are in compliance with Dodd-Frank, a new or changed set of regulations just makes them shell out to comply with it.  However, relaxing or delaying parts of the law–especially those allowing them to invest more widely and with less reporting and oversight–would certainly be in their best interests.

The argument for reducing restrictions on banks has primarily been that less regulations will mean more money and easier investment and loan activity for banks.  However, this is the exact situation we set out to avoid after bad bank investments led to bank failures which, just a few years back, brought our economy to such extreme lows.  Without Dodd-Frank, or with a gutted version of it, we’ll just have to hope banks have learned their lesson.

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Retirement May Have to Wait After Trump’s Latest Executive Order

The presidential orders continue to come thick and fast from the Trump administration.  One of President Trump’s most recent orders, titled Presidential Memorandum on Fiduciary Duty Rule, takes aim at deregulating those who invest your retirement funds.  It does this by undercutting something we have discussed on this blog before–the Obama Administration’s changes to the duty somebody investing your retirement funds has to you.

Planning for retirement is always challenging.  With that in mind, you always want the best possible advice.  However, the standards the people giving you that advice are held to might surprise you–and not in a good way.  The fiduciary duty rule was designed to make sure your always got the best advice possible.  So let’s take a look at exactly what the rules being targeted do and how Trump’s new memorandum will affect them.

What Are the Changes Being Targeted?

RetirementEarly last year, the Obama administration announced through the Department of Labor that they were changing the rules when it came to the duties a retirement investor owes their clients.  As it was, retirement advisors generally owed their clients “suitable advice.”  The new rule applied a higher level of obligation, known as a fiduciary duty, between client and retirement investor.

fiduciary duty is a legal duty to put the interests of a person or party above all else; violating this duty leads to legal repercussions. Somebody who has a fiduciary duty is called a fiduciary. In 1974, the Employee Retirement Income Security Act (ERISA) was passed to help create standards and practices for retirement and health plans. The original act applied a broad rule, assigning fiduciary duty to those rendering investment advice regarding a retirement plan for compensation. However, one year after ERISA was passed, the act was amended so that the application of fiduciary duty to retirement advisors was substantially limited.  Thus, the usual standard applied to retirement investors has been, as mentioned above, “suitable advice.”  Suitable advice requires an advisor to provide investing suggestions which the adviser believes are, as the name of the advice suggests, suitable to the client’s interest.  This is as opposed to providing advice that puts the interests of their client above all else–as per a fiduciary duty.

So just how much damage can entrusting your retirement to an advisor who is held to less than a fiduciary standard do? While there are certainly advisors who will provide non-conflicting advice regardless of the standard they are held to, the damage caused by conflicted advisors is substantial.  Leading up to the rule change, the Obama administration issued a study estimating that conflicts of interest cost retirement plans about $17 billion a year. The Department of Labor estimated that conflicted investment advice “could cost IRA investors between $95 billion and $189 billion over the next 10 years and between $202 billion and $404 billion over the next 20 years.”

The way the lack of fiduciary duty might be costing you money is where an retirement advisor suggests investment opportunities that provide them better commissions instead of providing you better returns. It is very common for companies to offer percentage commissions or rewards to advisors on certain investments or types of investments.  For example, the company Table Bay offered “a Maserati to advisers who sell at least $7.5 million in annuities in 2014 and a BMW, Range Rover, or Porsche to those with at least $6 million in sales.” These sort of deals can lead a retirement advisor to recommend investments with the best commissions as opposed to investments that are best for your retirement portfolio—leading to the costs described above.

Looking at these facts, this rule change certainly seems like it’s pretty beneficial to the public.  However, it has had its critics since it was first announced.  Those opposed to the rule have said that the changes may push some advisors out of the market by decreasing their profits.  They have also argued that it will lead retirement investors to offer services to lower income individuals.  While there hasn’t much evidence to indicate investors would abandon such a substantial market, it seems President Trump has been listening intently to the fiduciary duty rule’s detractors as he took the time to focus an entire memorandum on gutting the rule.

What Exactly Does the Presidential Memorandum Do?

A Presidential Memorandum has less formalities than an executive order, but carries similar force.  This means that, because the fiduciary duty rule was an agency policy change by the Obama administration as opposed to a Congressional Act, the rule is the sort of thing Trump can target directly through executive orders.

As it is, his memorandum is slightly more measured in its approach.  The memorandum states that the fiduciary duty rule is not consistent with the policies of Trump’s administration.  With this in mind, the memorandum requires the Secretary of Labor to review the rule in order to ensure that three tenants apparently crucial to any regulation under Trump’s watch.  First, the Secretary needs to determine is the rule, or any element of it, is likely to harm investors due to a reduction of access to advice–essentially ask advisors whether they will offer less services if they have to provide advice exclusively in the best interests of their client.  Second, whether the rule, or any of its parts, has caused disruption in the retirement investment industry sufficiently to have a negative effect on investors or retirees.  Third, the Secretary must determine whether the rule will cause an increase in litigation–an almost certain byproduct of holding investors to a higher standard of duty–as well as an accompanying increase in price for those seeking retirement services.  If, after a review of the legal and economic impact of the rule, it is determined that any of the three points in the memorandum are at issue then the Secretary of Labor must get rid of–or at least revise–the fiduciary duty rule.

Is This the End of the Fiduciary Duty Rule?

Given how broad the three elements in the memorandum are, it’s a pretty good bet that the fiduciary duty rule will be done for in the next few months.  At a minimum, we can expect a substantial delay before the rule takes effect.  Unfortunately, this change is part of a trend of demanding deregulation even where it doesn’t necessarily make sense.  What could have been a substantial step in consumer protection seems like it will, unfortunately, never materialize.

Aetna Health Insurance Lied About the ACA and Triggers Anti-Trust Claim

The Affordable Care Act (ACA), also known as Obamacare, has been an extremely contentious bit of legislation.  The future of the act is currently extremely uncertain, President Trump signed an executive order his first day in office which–while vague enough to be nearly symbolic in nature–still serve to limit the law to some extent.  However, the law has also been at the heart of a recent court decision which put a stop to a $37B dollar merger between two health insurance behemoths.

Aetna ACA

The decision comes as part of the ongoing anti-trust case over the merger between Aetna and Humana–two of the five biggest health insurance companies in the nation.  The announcement of the merger agreement of these two companies in 2015 led to an immediate investigation, and ultimately led to the Department of Justice, eight different states, and the District of Columbia all filing lawsuits saying the merger was anti-competitive.

Aetna obviously disagreed and between the government and them they managed to produce millions of pages of arguments and evidence for each side as to the exact economic impact of the merger.  Aetna’s dedication to the issue is no surprise, beyond the desire to see the merger go through they had some serious skin in the game–a $1B dollar fee to be paid to Humana if the merger fell through.

What Did Aetna Claim about the Affordable Care Act (a.k.a. Obamacare)?

One of the most contentious arguments revolved around the ACA itself.  The Affordable Care Act created a public forum through which the public could purchase insurance plans, although it did allow insurance companies to offer alternative plans outside of this public market.  It also requires insurers interested in providing plans through this market to comply with certain obligations.  Just before the lawsuit began, Aetna withdrew from all but four of the states it offered insurance policies through the ACA.

Aetna said that they withdrew because the plans they offered under the ACA were not making them money.  The government argued that they did it as part of strong arm tactic.  They said that Aetna, knowing the impact it would on public perception of the ACA, threatened to leave the program if the merger wasn’t approved

There was a fair bit of evidence that many of the ACA programs were, in fact, making Aetna quite a bit of money.  However, the government struggled to produce evidence showing Aetna’s actual motivations in leaving the ACA programs.  That is, they were having trouble, until they produced an email from Aetna’s Chief Executive to the Department of Justice itself specifically stating that their participation in the ACA hinged on them being allowed to merge with Humana.  From there, they went on to produce conversations with Aetna officers where they heavily suggested, and one time outright stated, that if they weren’t happy with the merger results the government wouldn’t be happy with their involvement in the ACA.  They even found emails where, after a series of emails explaining that the withdrawal was to strengthen their position in their upcoming anti-trust lawsuit, Aetna executives actively mentioned they were trying to avoid leaving a paper trail indicating the reason they withdrew from the ACA and making efforts to shield any such evidence from being produced in a lawsuit.

A few weeks ago, in a 156 page monster of a ruling, the court finally agreed with the government and part of that ruling was based on the fact that Aetna had misled the public–and attempted to mislead the court–as to the motivations behind leaving the ACA program.  So in order to understand how, let’s first discuss exactly how anti-trust law works before looking at how Aetna’s deception as to the ACA effected their case.

How Do Anti-Trust Lawsuits Work?

Anti-trust law is basically the government trying to keep companies from becoming such an enormous market presence that they prevent other businesses from competing with them.  If you’ve ever played Monopoly you get the idea.

The government pays particular attention to health insurance companies in anti-trust cases because of how Medicare operates and specifically how the government pays insurance companies to provide insurance supplements to cover gaps for seniors on Medicare.  Where health insurance companies have huge enough market presence, it leaves seniors paying fees that make these gap-filler plans inaccessible.

In order to establish that a merger would violate anti-trust law, the government has to show that such a merger would “substantially lessen competition, or tend to create a monopoly.”  They don’t need to show that it will absolutely happen, but just that there is a probability that a merger would be anti-competitive.  Establishing this, as you could probably tell from the millions of pages of evidence and a 156-page ruling, is generally an incredibly complicated and in-depth process.  Where the government can show such a probability, there is a presumption that a merger is illegal.  However, a defendant in an anti-trust case, such as Aetna, can produce evidence to rebut such a presumption.

There was obviously an enormous amount of evidence here as to the economic impact of the merger, evidence supporting both sides.  However, the question ultimately came down to how much of the market Aetna would end up controlling–and that’s where their game-playing around their motivations behind leaving the ACA came into play.

The Repercussions of Aetna’s Lie

Aetna’s whoppers about the ACA weren’t the only or the deciding factor in the court’s ruling.  However, they were influential enough to one of the few elements they specifically mentioned in the summary of their ruling out of the over a hundred pages of evidence that ruling discusses.

So what did Aetna’s dishonesty actually mean for their case?  The government argued that because Aetna misled the public, the court had to ignore the fact that Aetna had in fact left the markets for those states and only consider Aetna’s market presence as it was before they withdrew.  The court didn’t buy this, however they still took Aetna’s deception into account.  They looked to the future to consider whether Aetna may expand into those markets in the future.  Given that Aetna was making money in those and only withdrew as part of a strong arm tactic, they felt it very likely they’d return to the markets they left after the merger completed.  They felt this true in Florida, where the ACA markets were actually found to be the only profitable part of Aetna’s business–a situation which led to confused emails from Aetna officials out of Florida–these emails received a hasty response to only discuss the matter over the phone.

With all this in mind, the court felt it was likely that Aetna would simply return to the markets it had abandoned post-merger.  As discussed above, likely is all a court needs in an anti-trust case.  Thus, in a very real way, Aetna’s approach to the ACA had a huge hand in killing their chances of a successful merger.

What Does This Mean on a Broader Level?

First and foremost, the most obvious lesson here is that judges don’t particular care for hiding evidence.  So much so that it took what could have been a fairly small issue and turned into an entire section of the court’s ruling.  However, the reality of the situation also impacts some of the arguments surrounding the ACA.

Just weeks ago, Aetna’s withdrawal was used as evidence to support the end of the act.  However, when the reality is a more profitable one than Aetna led the country to believe, it certainly muddies the water on the issue.  We’re almost certainly going to see a lot of changes to the ACA in coming months and years.  However, it’s important that we look at the facts as they are when discussing the issue–and not spin on the topic such as Aetna’s misrepresentations.

DAPL: Can Trump Push Forward the Dakota Access Pipeline?

The protests over the Dakota Access Pipeline (DAPL) have been going on for around a year now, with the Standing Rock Sioux Tribe and their allies demonstrating to stop the completion of the oil pipeline.  The Sioux argue that, not only does the project violate their treaty rights by failing to consult them on projects crossing through their land, the oil pipeline would also poison their only water supply by crossing under Lake Oahe and destroy land sacred to the tribe.

Their concerns have merit, during the Sioux Tribes lawsuit on the matter they brought concerns over specific sacred locations before the court–only to find the following Monday that all the areas they mentioned to the court had been bulldozed over the weekend.

Trump DPL

The protesters had won a huge victory last year, the Department of Justice under the Obama administration, along with the Department of the Interior and the U.S. Army, issued a joint statement pausing construction on the DAPL while the U.S. Army Corp of Engineers reviewed its decisions as to whether the pipeline’s construction was consistent with federal law.  In what looked like an ultimate victory for the Sioux, the Corp of Engineers ended up denying an easement which would have allowed the DAPL to cross Sioux land towards the end of last year. An easement is a legal term for the right to make use of land that isn’t yours for some specific, limited, purpose.

Many thought this was an end to the DAPL pipeline.  Last week, however, President Trump issued an executive order which has the potential to change all that.  The order, published on January 24th 2017, has been heralded as a potential deathblow to the protest efforts of the DAPL demonstrators.  So what exactly does the order do?

What is in the Order Itself?

Despite the frustration and worry that this order has caused to the Sioux tribe and their supporters, Trump’s order is not one outright ordering that the DAPL be finished and use Sioux land.  This is likely because Trump simply does not have the power to make such a proclamation via executive order, likely the same reason that President Obama didn’t simply end the pipeline via executive order.  The process of approving or denying the DAPL is a more complex administrative process.  The order takes a similar approach to attempting to expedite the completion of the Keystone XL pipeline–previously denied permit due to environmental concerns in 2015 by previous Secretary of State John Kerry.  However, what Trump’s order can–and does–do is make this administrative process quicker and smoother for the business interests behind these pipelines.

In his order, Trump leverages his authority to order the Secretary of the Army to instruct the U.S Army Corp of Engineers and the Assistant Secretary of the Army for Civil Works to review and approve, as quickly as possible consistent with current law, renewed requests for a DAPL easement.  It also orders them to, again consistent with existing law, consider whether to rescind or modify the steps that the Army Engineers had taken to stop the DAPL–last year’s memorandum rejecting the easement and a proposed review of the environmental impact of the DAPL issued last month.  Finally, it orders an expedited grant of all other permits and easements necessary along with a waiver of notice periods to further expedite the process–once again so long as these actions are consistent with existing law.

So you’ve probably noticed a trend in the order–consistent with existing law.  There’s even an entire section of the order saying that the order shouldn’t be construed to attempt to alter any Federal, state, or local property law.  This means that if the environmental impact, use of land, or other legal issue are still inconsistent with the requirements of law they will still not be made.

So does that mean that the Sioux and other DAPL protesters are worrying over nothing?  Absolutely not.   The DAPL has been given another bit at the apple and Trump’s order certainly shows how he thinks the process should proceed–stacking the deck in favor of the DAPL.  However, the Sioux have a number of legal rights which they will certainly argue in their renewed efforts to stop the DAPL from crossing their land.

What are the Rights of the Sioux?

The first and most obvious right of the Sioux is the right to a thorough and well considered review process of the environmental impact of the DAPL.  The process itself would likely take months and given the Standing Rock Sioux have already filed suit for an injunction on the review altogether there is very little chance that the process will be completed particularly quickly.  If the review goes through and the Army Corp of Engineers reverses their stance on the environmental impact of the DAPL, there is no question that the Sioux can and will bring a lawsuit questioning the thoroughness of the review–especially if the review is particularly hasty as Trump’s order requests..

The Standing Rock Sioux also have legal rights to the land itself.  In 1980, the Supreme Court ruled that the U.S. had unjustly taken the Black Hills from the Sioux tribe.  The U.S. government was ordered to compensate the tribes for the land taken from them.  However, the Sioux declined the payment and instead sought a level of ownership in the land taken from them.  Unfortunately, this does not mean that the Sioux actually own the land that was taken out from under them as U.S. law generally follows the “doctrine of discovery.”  This basically means that whoever initially documented land can lay claim to it.

This approach has led to two things, shaky ownership of ancestral lands for Native American tribes and a series of rights granted to those same tribes to try and recognize the land that has been taken from them.  One of the most important of these rights, granted in 1992, is the known as the right to be consulted.

The right to be consulted requires a federal agency to consult with local Native American tribes before undertaking or approving any construction project in order to ensure that there are no sacred sites near the construction site.  This applies even if the project is off reservation land in order to recognize the fact the many tribes have been forced to move far away from lands that were once theirs and sacred to them.

The exact nature of the consulting process has been a point of contention with the DAPL and the Sioux.  Those behind the DAPL argue that they did consult the Sioux sufficiently.  However, the Sioux argue that they should have been consulted more frequently as the project evolved instead of essentially brought in last second to rubber stamp what was a nearly completed project.

The Reality: Climate Not a Priority For Trump

Beyond a willingness to trample the rights of the Standing Rock Sioux, Trump’s order also shows a  disregard for the environment as a whole.  However, this is no surprise.  Trump has already vowed to cancel Obama’s Climate Action Plan and has threatened to pull out of or defund the Paris Climate Agreement, an international treaty with the goal of reducing human impact on global warming.  His appointment for head of the Environmental Protection Agency is on record as a climate change denier–even having previously stated that he didn’t feel the EPA was necessary at all.  The DAPL order is likely the tip of the iceberg of what we should expect–both when it comes to climate and when it comes to disregarding the rights of minorities.