Peter Aaslestad is a man surrounded by pipelines. The Atlantic Coast Pipeline is planned to go right through his hometown of Staunton, Virginia. The proposed Mountain Valley Pipeline would wind its way along the states southwestern corner, about 100 miles away. Aaslestad lives in what he describes as a deep-red town, but he doesnt see pipelines as a left-right issue. He makes his living as an artist and photographer, drawing true-to-form sketches of historic structures for preservation and for other architectural projects.
In 2016, Aaslestad learned that the onslaught of pipeline building had followed him back to his childhood summer home in Louisiana. He received a notice in the mail from Bayou Bridge, a company building a pipeline across the Atchafalaya Basin, the largest wetland in the United States. The Aaslestad family co-owns a parcel in the basin, and Bayou Bridge offered Peter $150 to build a 50-foot right-of-way directly through it. In March 2017, the company upped the offer to $899, but Peter again declined.
It was a type of proposal repeated throughout U.S. history, which grew out of the Fifth Amendment to the Constitution. The process of eminent domain allows for private property taken for public use, as long as the property owner receives just compensation. Courts have repeatedly upheld the governments right to use eminent domain. But in this case, the state of Louisiana wasnt approaching Aaslestad for his land; the pipeline company was.
The Aaslestads are now embroiled in a lawsuit in state court over Bayou Bridges request. While most eminent domain challenges allege a lack of just compensation for the property, this case could turn on whether, in a time of climate emergency and ecological degradation, constructing a pipeline serves a public use. Its one of the first lawsuits in the country to raise this question, and the outcome could open up a new strategy in the fight to protect the planet: using eminent domain authority as part of a progressive climate policy.
THE 38-ACRE PARCEL, located in St. Martin Parish, Louisiana, is among many that the 162.5-mile crude oil pipeline spans, winding its way from Lake Charles in the west to St. James Parish in the east, traversing 11 parishes and several crude oil refineries and export terminals. Bayou Bridge, a subsidiary of Energy Transfer Partners, planned the pipeline as the southern extension of the Dakota Access Pipeline.
Owing to a vestige of Louisianas French colonial history, much of the land in the Atchafalaya Basin is joint-owned under Napoleonic law by over 400 people. The Aaslestad siblings, Peter, Lauren, Karen, and Katherine, inherited the chain of title from their mother. Before that, their grandfather used it for a hunting camp, a relatively common circumstance in Louisiana. This part of the basin is largely uninhabitable; to reach their parcel, Katherine said, they travel by boat for roughly an hour and wade through bayous and other small bodies of water.
But Peter and Katherine didnt want an oil pipeline cutting through their land, no matter how remote it is. The truth is Ive never lived there but that doesnt mean its not a homeplace for our family, Peter said. They refused the initial offer, but Bayou Bridge refused to give up, drowning the siblings in legal paperwork and sending lists of other landowners who agreed to the payout. According to Katherine, after the family continued to turn them down, the company basically said, Were gonna do it anyway, you can take our money or you can not. Shortly after this, the Aaslestads learned that heavy machinery had already begun carving up their land.
Misha Mitchell first noticed the trespassing. A lawyer for the conservation group Atchafalaya Basinkeeper, Mitchell was conducting a survey of the wetlands and swamps by helicopter for a separate permit compliance lawsuit she had brought against Bayou Bridge, when she spotted bulldozing and trenching for the new pipeline. Mitchell realized that the company had begun excavating land and clearing trees on private property without permission.
Bayou Bridge eventually completed the portion of the pipeline on the Aaslestads land, without ever reaching agreement on taking it. We thought they were building the pipeline, but lo and behold it was built, Katherine Aaslestad said. Energy Transfer and Phillips 66, which shared ownership, announced the Bayou Bridge Pipelines completion in April 2019. In response to a request for comment, Energy Transfer spokesperson Alexis Daniel wrote that the pipeline was deemed a common carrier under Louisiana Law and that the pipeline has complied with all regulations applicable to maintain this status.
Mitchells group, Atchafalaya Basinkeeper, and the Center for Constitutional Rights filed a trespassing lawsuit against Bayou Bridge, working with the Aaslestads and another landowner, Theda Larson Wright. Unlike the Aaslestads, Larson Wrights oral testimony showed that her ancestors lived on or very near the parcel until the Great Mississippi Flood of 1927 when her ancestors were forced off the land through eminent domain for levee building.
The lawyers, who are handling the case pro bono, had trouble getting others involved. Pam Spees, an attorney for the Center for Constitutional Rights, said few are willing to sign on to lawsuits because companies take their eminent domain claims directly to landowners, offer them a few hundred dollars, and warn that theyll take the landowners to court if they refuse. It costs $700 just to file suit over eminent domain, Spees said, adding that not many people have disposable income to fight something thats often a protracted and expensive lawsuit that theyre likely to lose.
The trial court ruled that Bayou Bridge did commit trespassing when it began construction, but only awarded to $75 for trespassing and $75 in property damages to each landowner on the case. Separately, the judge awarded $75 each as just compensation for the taking. The trial court also granted expropriation to the company, allowing them the easement through the property to complete the construction. The company assumed that it could just ignore the law, Spees said. According to the courts ruling, it seems like they were right.
The landowners decided to appeal, even though the pipeline is already complete. They argue that they were denied their due-process rights because of Bayou Bridges trespassingand that the companys eminent domain authority should never have been allowed in the first place. The appellate court, Spees explained, could rule that because the company was acting as a state actor, it can be found liable for violating constitutional rights. A ruling in favor of the landowners might reset how eminent domain authority is conferred in Louisiana and perhaps urge a nationwide shift in eminent domain law.
The Louisiana lawsuit could turn on whether, in a time of climate emergency and ecological degradation, constructing a pipeline serves a public use.
LARGER THAN the Florida Everglades, the Atchafalaya Basin is teeming with wildlife, including hundreds of species of birds, reptiles, amphibians, fish, crawfish, shrimp, and crabs. There are bobcats and Florida panthers, mink and armadillos, opossums and muskrats, and it may be the last bastion for species like the ivory-billed woodpecker, Bachmans warbler, and endangered birds like peregrine falcons. Species unique to the basin, such as roseate spoonbills, are a delight to glimpse.
Bottomland hardwoods, cypress, swamp iris, and tupelo gum trees, as well as small streams and bayous, give the basin its hauntingly beautiful profile. Migratory tropical birds spotted north in the summer months such as herons, kites, thrushes, warblers, and buntings, breed in the basin during the spring months.
When you look at the ecology of the planet, [the basin is] probably the most important place for migratory birds in the whole hemisphere, said Dean Wilson, executive director of Atchafalaya Basinkeeper. When everything else is gone, that will be the last place birds can call home.
Pipelines now crisscross the basin, marring the landscape and irreparably damaging its fragile ecosystem. The Bayou Bridge Pipeline, 24 inches in diameter, has a capacity of 480,000 barrels of oil a day and required a linear clearing through the basin 50 feet wide. It crosses 700 bodies of water, including the Bayou Lafourche, which is a source of drinking water for nearby communities.
Pipeline construction requires digging trenches and clearing trees; acres of trees have been felled during the Bayou Bridge construction process. The throughway permanently converted hundreds of acres of forested wetlands into non-forested wetlands, according to Mitchells permit lawsuit. Perhaps more devastating, because of changing water flow that drowns young trees, cypress and tupelo trees cannot regenerate. Consequently, the permit lawsuit adds, trees that are hundreds of years old are likely gone forever.
Pipeline companies often have abysmal records with oil leaks. The permit lawsuit notes that, because of the basins remoteness, even a small leak could have major ecological consequences, given that it would likely go undetected for a long time. Leaks of 2 percent or less are invisible to remote leak-detection technology, but with the Bayou Bridge Pipelines capacity, a 2 percent leak amounts to 400,000 gallons of crude oil every day. Energy Transfer, Bayou Bridges parent company, has a particularly shoddy record: Between 2006 and 2017, the company and its subsidiary were responsible for 329 significant pipeline incidents, amounting to a rate of more than two per month at an estimated cost of over $67 million. Energy Transfer is already noncompliant in the Atchafalaya Basin with a different pipeline.
Perhaps most critically, the basin acts as natural flood abatement. Its the most important spillway in the Lower Mississippi River, and it receives diverted water during major floods. Without it, cities like New Orleans and Baton Rouge would be even more vulnerable to flood damage.
The trenching required to bury a pipeline creates spoil banksmounds of earth displaced and piled on either side of the pipelines path. After completion, companies are supposed to smooth out the land, returning it to preconstruction leveling, but they often dont. Because Louisiana has a long history of not enforcing pipeline construction permits, companies have no incentive to dismantle the spoil banks.
Many pipelines are laid east to west, but water in the basin flows north to south. The spoil banks prevent natural water flow, decreasing water quality and oxygen content, and preventing natural flood abatement flow. Pipelines also destroy the natural ecology of the basin. Local crawfishermen have watched the deterioration and disappearance of the wetlands, once fertile grounds for their livelihoods. Large sections of the basin can no longer be fished.
Protesters who prefer to call themselves water protectors have sought to block pipeline growth as it has unfolded throughout the basin. Energy Transfer hired dozens of St. Martin Parish sheriffs deputies to protect pipeline construction from protesters in 2018, Karen Savage and Sarah Lazare reported for In These Times. The deputies threatened the activists with charges of felony trespassing. Sixteen people were later arrested under a new Louisiana law barring trespassing on oil pipelines, punishable as a felony with up to five years in prison. (Similar laws, called critical infrastructure protection laws, have been based on legislation in states like Oklahoma and are currently being considered in Ohio.)
Since the Deepwater Horizon oil spill in the Gulf of Mexico, Louisiana has spent billions to fix its natural environment. Partly using settlement funds, the Louisiana Coastal Plan recommended investing $25 billion in wetland restoration, to build up ecosystem and reduce flood risk. The state is already spending millions in the basin on this taskremediation that could have been conducted by the companies themselves, had the state enforced the initial pipeline permits.
Its a huge issue for the state to spend so much money on coastal land projects but allowing this to happen on the basin, said Misha Mitchell. If we did the right thing to begin with, we could continue the natural system and we could do that without all the [spending].
According to the Louisiana Comprehensive Master Plan for a Sustainable Coast, the Mississippi River Delta provides $12 billion to $17 billion in benefits to people each year. In the permit suit against the U.S. Army Corps of Engineers, which issues permits and is responsible for their enforcement, the plaintiffs note, If this natural capital were treated like an economic asset, its total economic benefit to the nation would be $330 billion to $1.3 trillion per year.
But during the 2018 trial for the landowners lawsuit, the judge refused to permit any discussion about the lands value beyond its monetary worth as a residential or commercial location, or for timber. Theyre not asking the right questions, Katherine Aaslestad said. The court did allow Bayou Bridges representatives to talk about the economic benefits of oil and petroleum products, but restricted discussion about the land to that specific parcel, not the Atchafalaya Basin as a whole. In effect, the trial court excluded any discussion of not just the pipelines effect on the surrounding environment, but its cumulative contribution to climate change.
THE LAWSUIT IN LOUISIANA challenges the broad interpretation of the eminent domain clause, and in particular the way it has been defined through the pivotal Supreme Court case Kelo v. New London (2005).
Understanding Kelo requires stepping back in time, explained Ilya Somin, the author of a book on the case. From the turn of the 20th century to the 1950s and 1960s, the dominant understanding of eminent domain was that property could only be taken for a public use, meaning eminent domain was thought to only allow for a government-owned facility or a private project that legally had a duty to serve the public. Examples of this included highways and railroads. The definition eventually expanded to public purpose, meaning that it might benefit the public in some way, Somin explained.
You have to ask a different set of questions. You cant just keep assuming that more [pipeline] infrastructure is still good.
Alexandra Klass, a law professor at the University of Minnesota, explains a similar history in the interior West, where coal and natural-resource extraction ruled economies. At the end of the 19th century, as states in the West wrote their constitutions, coal interests and other natural-resource lobbyists advocated for provisions they advertised as essential for continued economic development.
During Idahos constitutional convention, for example, mining interests argued that the states prosperity and industrial expansion depended on conferring broad eminent domain authority to private companies. Opposing delegates argued that such authority was thievery and a tool of monopolists. Nevertheless, big industry won, and the state added the provision. Before long, in natural resource-rich areas of the country, as Klass wrote in a 2008 law review article, The Frontier of Eminent Domain, property condemnations were more likely to come from a mining, oil, or gas company representative than from the government. These eminent domain rights were ostensibly in the public interest, despite the fact that the land condemned by an oil or mining company will not be subject to public access or public use.
These state constitutional provisions helped pave the way for a century when public use was no longer in vogue, and public purpose was the name of the game. From 1900 to the 1950s, the broader view gained ground, culminating in the Supreme Courts embrace of it in Berman v. Parker (1954), Somin explained. By the time of the Kelo case, economic development and natural-resource takings under the broader definition seemed entrenched.
Kelo, Klass argues, was decided on the body of law that the interior West states had pioneered for the expansion of their natural-resource industry. The justices ruled in a 5-4 decision that the city of New London, Connecticut, could condemn residential properties for a redevelopment plan, because private developers would create jobs and increase tax revenues, thereby having the broader public purpose. As it turns out, the land was never developed and lies fallow today.
Economic-development takings, like the one in Kelo, are much like natural-resource takings because the condemnor has the right to displace private property interests in the name of economic development that will benefit the public at large. Similarly, while pipelines are not natural-resource takings per se, eminent domain authority is conferred to private pipeline companies under the broader public-purpose definition in a similar manner. Pipelines themselves are not new; Congress recently took up a bill to repair dangerous pipeline infrastructure over 100 years old. But now, more than a decade after Kelo, theres increased scrutiny of natural-resource takings and economic-development takings. This could be because you have a huge build-out of pipelines because of fracking, Klass said in an interview.
Fracking, a technology used as far back as 1949, has mushroomed into a mammoth industry, as methods like horizontal drilling in shale rock formations have discovered massive underground stores of oil and natural gas. When Kelo was decided in 2005, the U.S. was producing about five million barrels of crude oil per day. In 2019, that number was about 12 million. The boom also created enough surplus for companies to begin exporting oil and gas, which actually decreases the strength of an eminent domain argument. Wheres the public use if all the pipeline is doing is transporting gas thats then shipped overseas? Klass explained.
Pipeline takings were rare in the 19th and early 20th centuries, compared to other energy infrastructure projects like power lines. But the emergence of the United States as a major energy producer and exporter required significant new pipeline building, and accompanying eminent domain takings.
The Kelo decision so enraged landowners that it helped build the anti-pipeline coalition that exists today. After Kelo, over 40 states passed stricter statutes defining public use, closely scrutinizing approved projects. The national outrage helped forge an unlikely coalition of environmental groups, libertarians, indigenous activists, and property owners, all opposed to further pipeline developmentfor seemingly incongruous reasons.
With the new conservative majority on the Court, Kelo may be on the chopping block. Kelo has the marks of a decision thats likely to be overruled, said Somin. The majority opinion has a bunch of errors and problems. Somin added that the emails that came out during Neil Gorsuchs nomination vetting indicated that he disliked Kelo, and Brett Kavanaugh may also be inclined to overturn.
If it does get overruled completely, I think that would be progress in terms of banning these kinds of economic-development takings nationwide, Somin said.
In a forthcoming law review article, Eminent Domain Law as Climate Policy, Klass makes the case that eminent domain authority can be revoked from fossil fuel industries and conferred, with proper safeguards, on industries like solar and wind, as a way to encourage development of renewable energy. By 2019, 29 states; Washington, D.C.; and three U.S. territories had adopted laws that require a portion of all electricity generation to come from renewable sources; California, leading the way, has mandated 100 percent renewable energy by 2045. But Klass argues that states should consider limiting eminent domain rights for fossil fuel projects, and extending eminent domain rights for clean energy projects as part of their state climate policies.
As Klass explains, state legislative reforms after Kelo did little to directly confront natural-resource takings. In Louisiana and other states, giving eminent domain authority directly to private industry remains strong, despite the growing debate about what constitutes public use when it comes to eminent domain. Even the Federal Energy Regulatory Commission (ferc), which regulates interstate natural gas pipelines, has been urged to reform how it reviews pipeline permits to factor in climate change. A new bill, introduced by Frank Pallone (D-NJ), chair of the House Energy and Commerce Committee, does just this. While the bill has been proposed mainly for discussion, it augurs a future where climate impact is a regular part of pipeline permitting when it comes to assessing the public interest.
Thats why the Louisiana landowners lawsuit is so critical: It asks the questions advocates have been asking for years. Are pipelines still in the public interest? How do we calculate the benefits, weighed against the costs of a warming planet? As Pam Spees put it, Eighty years later, you have to ask a different set of questions. You cant just keep assuming that more [pipeline] infrastructure is still good.
THE ALLEGATION that the pipeline is not in the public interest seems clear to environmentalists and landowners, but the plaintiffs have to convince the court in a state that Misha Mitchell described as a friend of oil and gas. Despite the initial loss in district court, Pam Spees told me she is hopeful now that they have appealed to the Third Circuit. Hopefully [the court] will award significant damages and deter other companies from doing the same thing, she said. These private companies should never have had the unfettered power the state gives them.
But some argue that a favorable ruling may not lend itself to retooling eminent domain as an instrument of climate policy. Despite the short-term benefits to the local environment and landowners in Louisiana, it also has the potential, without further action, to obstruct the switch to cleaner sources of energy, explained James Coleman, a law professor at Southern Methodist University who has worked with Klass on issues of eminent domain. The status quo is fossil fuel, he said. A switch to cleaner sources means building more infrastructure.
When Katherine Aaslestad traveled to St. Martin Parish for the trial court hearing in 2018, she said the land no longer looked like what she remembered from her childhood. It was a moonscape, she said, describing the spoil banks nearly 15 feet high, and the lack of tree cover.
In areas without spoil banks, Katherine said, it felt raw in the most beautiful way. No paths. No signs. Theres all kinds of colors and sounds in the basin and when youre hiking across you see all kinds of flora and fauna.
With the pipeline already built and spoil banks tarnishing the landscape, the lawsuit cannot recover that. But a ruling in the landowners favor could be a sign of the shifting tide on fossil fuel companies presumed rights of eminent domain authority.
I grew up around swamplands, wetlands, bayous, Katherine said. I was part of that world. I took it for granted. Now she wants to help make sure it doesnt disappear.
Read the rest here:
The Constitutional Option to Fight the Climate Crisis - The American Prospect