Category Archives: Eminent domain

U.S. Government Just Approved an Enormous Oil Pipeline

Repost from Mother Jones

The Government Quietly Just Approved This Enormous Oil Pipeline

Four reasons why people are outraged.

By Alexander Sammon, Aug. 12, 2016 6:00 AM

It took seven years of protests, sit-ins, letter writing, and, finally, a presidential review to prevent the Keystone XL oil pipeline from being built. Now, in a matter of months, America’s newest mega-pipeline—the Dakota Access Pipeline Project (DAPL)—has quietly received full regulatory permission to begin construction. Known also as the Bakken Pipeline, the project is slated to run 1,172 miles of 30-inch diameter pipe from North Dakota’s northwest Bakken region down to a market hub outside Patoka, Illinois, where it will join extant pipelines and travel onward to refineries and markets in the Gulf and on the East Coast. If that description gives you déjà vu, it should: The Bakken Pipeline is only seven miles shorter than Keystone’s proposed length.

The proposed route of the recently approved Bakken Pipeline – Dakota Access

The $3.78 billion project is being built by Dakota Access, LLC, a unit of the Texas-based Energy Transfer Partners. (Former Texas Gov. Rick Perrya friend of Iowa Gov. Terry Branstad, sits on ETP’s board.) According to the firm, the Bakken Pipeline will transport up to 570,000 barrels of crude oil per day. Advocates have celebrated the supposed 12,000 jobs the pipeline will create in construction, while repeating calls to end American dependence on foreign oil—a platform called into question by new laws allowing US producers to export crude. The US Army Corps of Engineers gave its blessing at the end of July, clearing the final hurdle for the massive infrastructure project, which is slated to be operational by the fourth quarter of 2016.

Though the project hasn’t gotten too much national media attention, there’s been plenty of local opposition. Groups like the Bakken Pipeline Resistance Coalition, a collective of 30-plus environmentalists’ and landowners’ associations, along with Native American groups, have cried foul. Here are the four things they’re most outraged by:

How many jobs…really: According to Dakota Access’s DAPL fact sheet, the pipeline will create 8,000 to 12,000 construction jobs. An earlier draft of those figures claimed 7,263 “job-years” to be created in Iowa alone. Not so fast, says professor David Swenson, associate scientist in the Department of Economics at Iowa State University. Swenson crunched the numbers himself and came to a much more modest conclusion: 1,500 jobs total per year in Iowa for the course of construction. And given that most of these jobs are skilled, Swenson expects many of the hires will be from out of state, as Iowan contractors specializing in large-scale underground pipe-fitting and welding are scarce. The long-term forecast for job creation is even bleaker. The Des Moines Register reports that there will only be 12 to 15 permanent employees once the pipeline is completed. (DAPL has since walked back its job estimate slightly.)

Spill, baby, spill: As Sierra Club’s Michael Brune puts it, “It’s not a question if a pipeline will malfunction, but rather a question of when.” And, though they spill less often than trains do, the International Energy Agency found that pipelines spill much more in terms of volume—three times as much between 2004 and 2012. The Bakken Pipeline’s route takes it through active farmland, forests, and across the heartland’s major rivers: The Big Sioux, the Missouri, and the Mississippi, some with multiple crossings, though the US Fish and Wildlife Service claims that no “critical habitat” is endangered. It also runs through sacred Native American lands (more on this below).

Enbridge Inc., a stakeholder in the Bakken pipeline, has a speckled track record on spills. In 2010, an Enbridge pipeline spilled 1.2 million gallons of crude into the Kalamazoo River, one of the worst inland spills in American history. Because the pipeline qualifies as a utility (despite being privately owned and for-profit), the Army Corps of Engineers was able to certify it without performing an environmental impact statement, as all utilities projects qualify as “minimal impact.” These projects are subject to environmental assessments every five years.

Don’t tread on me: Private property owners, particularly in Iowa, have bristled at the Bakken Pipeline’s expropriation of land. ETP asked the Iowa Utilities Board to grant it the powers of eminent domain, the process by which a government can repossess private property for public use even if the private property owner does not voluntarily sell. The IUB, a three-person committee appointed by Republican Gov. Terry Branstad, granted ETP that right for its for-profit private pipeline, a practice that is not uncommon, in order to purchase 475 parcels from resistant landowners. This has led to numerous pending lawsuits, with the Des Moines Register reporting that the issue may make it all the way to the Iowa Supreme Court. In May 2015, ETP was embroiled in scandal after a contracted land agent, working on behalf of the Bakken Pipeline, allegedly offered an Iowan landowner a teenage prostitute in exchange for voluntary access to his property. (No charges were brought after the Iowa Department of Criminal Investigation determined that the case did not meet the legal standard for pimping, solicitation, or conspiracy.)

DisRezpect: The pipeline will cross through sacred lands and pass under the Missouri River twice. For the Standing Rock Sioux, the Missouri provides drinking water and irrigation, while its riverbanks grow innumerable plants of cultural import, including sage and buffalo berries. The tribe launched a campaign called “Rezpect Our Water” and staged a 500-mile relay race in protest, hoping to sway the Army Corps of Engineers in the permitting process. Last weekend, a group of 30 Native youth completed a three-week run from North Dakota to Washington, DC, where they delivered a petition of 160,000 signatures opposing the pipeline’s construction.

Now, even though the Corps has given the go-ahead, the tribe has not given up the fight. They recently filed suit against the Corps in federal court. The suit seeks an injunction, asserting that the pipeline will “damage and destroy sites of great historic, religious, and cultural significance,” a violation of the National Historic Preservation Act.

Though the pipeline seems to be a done deal, resistance of all types continues. Last week, the Des Moines Register reported that authorities are investigating suspected arson against the ETP’s heavy machinery. The fires, three separate incidents across two Iowa counties, resulted in nearly $1 million in damage to bulldozers and backhoes. The acts appeared to be intentional incidents of monkeywrenching.

On Thursday, a group of protesters, including the Standing Rock Sioux and their allies, gathered in North Dakota to oppose the pipeline, blocking the construction site. The police ultimately broke up the demonstration, resulting in at least five arrests.

No Dakota Access pipeline from Camp of the Sacred Stones blockade @POTUS@FLOTUS@USACEHQ
2:03 PM – 11 Aug 2016

Alabama controversy over tank farm expansion – lessons for us all

Repost from New American Journal
[Editor:  This is a telling tale of local governance confronting – or not confronting – difficult issues, and serves as instructional material for others who take up local advocacy.  Good graphics.  – RS]

Tank Farm Harvest Plans in Mobile — Crude Oil Is the Crop — But What Gets Plowed Under?

By David Underhill, March 31, 2015 
Tank farm city, with more scheduled: Glynn Wilson

MOBILE, Ala. – The tank farms became a hot potato, singeing any official who touched them.

Residents near sites for new or expanding tank farms fired complaints at the city’s planning commission, which readily tossed the heated hassle to the city council. A majority poised to pass a moratorium on construction of tank farms, until promoters of these projects maneuvered to whittle away that majority.

That spawned a citizens’ committee to study the issue and make recommendations to the planning commission, which appointed a subcommittee to receive these recommendations. That subcommittee is now juggling the spud before lobbing it back to the full planning commission, which will fling it again to the city council, which will … who knows.

Last week the subcommittee’s three members met to ponder. Joining them were the planning commission’s lawyer and head staffer. Although this happened in public it wasn’t a public meeting. Citizens could sit and listen but not participate.

The audience sorted themselves, as usual, into factions: the tank farm evangelists in one clump and the unbelievers in another. There were few, if any, neutral observers.

Discussion began with the easy issues: Does the city have satisfactory procedures for deciding whether and where to locate tanks holding hazardous materials? How should the public be informed about impending decisions on these matters? Should the concerns of nearby residents have a prominent role in the proceedings? Can noxious fumes be captured rather than released from tank farms? Must the operators of such facilities provide timely, accurate information to fire departments and other emergency services about dangerous substances on hand?

All agreed that any deficiencies in such issues could be fixed by adjustments to current practices.

Consensus By Garble

Then came the hard part. It was the same item that had flustered the citizens’ committee, which tried to achieve consensus about its recommendations — and largely succeeded — with one contentious exception.

Buffer zones: How broad a safety strip should separate tank farms from homes, schools, churches, hospitals, businesses? The wider the strip the less danger if something goes explosively wrong. But the wider the strip the less land remains for the tanks.

Most of the proposed new and expanding tank farms are squeezed between the waterfront and commercial or residential districts. Broad buffer zones would leave so little land for tanks along the shore that the planned facilities must shrink drastically, perhaps to the vanishing point.

This applies in the north Mobile neighborhood of Africatown, settled by the human cargo from the last slave ship to arrive in the U.S. The huge tank farm intended there would squat between the waterfront and a dense residential area.

Some on the citizens’ committee wanted a setback half a mile wide to protect Africatown. Others, more attuned to industry’s wishes, wanted a lot less.

This conflict strained the quest for consensus and garbled the passages about buffer zones in the committee’s final report. Now the same wrangle vexes the planning commission’s subcommittee and it too has found no easy solution, as the discussion at last week’s meeting revealed.

Consensus By Punting

Nobody on the subcommittee wanted to specify a number for the width of buffer zones. They said projects would differ by location and each should be considered on its own merits. Maybe, they suggested, a minimum width could be required with an option for wider setbacks where warranted by circumstances.

But they shied from saying what that minimum should be. Instead they instructed the staff to produce maps showing the sectors of the city zoned for heavy industry — where tank farms might locate — with surrounding buffers in 500 foot increments. These maps will illustrate where the desires of tank farm developers collide with people living and working within 500, 1,000 or 1,500 feet (and maybe more increments).

And the subcommittee speculated about stretching the buffers with words. Must the setback be measured from the boundary of a tank farm site to the boundary of a nearby residential zone? Or might it be measured from the porch of the nearest inhabited home to the position of the tanks within the site. Then the necessary buffer could be created by moving the tanks to the farthest part of the site and putting offices and other support facilities in the part closest to residences.

The maps will not say what the width of a buffer ought to be or where it should be measured from. The subcommittee will have to decide this and they are not ready to do so. They will meet again next month to study the maps. And they instructed their attorney to draft a prospective report to the full planning commission about any changes their deliberations may require in the city’s zoning or other regulations.

Consensus By Omission

This was a deft juggling of the hot potato. But the subcommittee didn’t dare to even touch the truly searing produce.

They recognized that approving tank farms implies approving the transport of substances to fill those tanks. In Mobile that means trains pulling long, hazardous chains of tanker cars brimming with crude oil. Subcommittee members remarked upon fiery accidents elsewhere by such trains (opponents call them bomb trains and the neighborhoods along their routes blast zones) and fretted about repeats here. But the subcommittee pleaded impotence. They said railroads are regulated by others, who have the responsibility to oversee safety.

Blast zone around proposed oil train unloading facility, downtown Mobile

But the trains wouldn’t be coming to town without tank farms to receive their cargoes. And the subcommittee, as a branch of the planning commission, does have a say in whether these tank farms exist. Yet the members were hesitant about linking tank farm decisions to dangers from trains.

They have the legal authority to attend to the health and safety of the people. But they acted like their main responsibility is fostering economic development. And they said repeatedly, in various phrasings, that expanding waterfront tank farms equals economic development.

To them, anybody prepared to invest any big wad of money in anything is welcome. They didn’t consider (not out loud, at least) the elementary idea that devoting the waterfront to tank farms prevents other uses of the shoreline that might be more desirable development.

While subcommittee members did note risks from tank farms, they said repeatedly that a balance must be found between economic development and public safety. This might be a valid approach if the benefits and hazards of tank farms were spread evenly across the city. But they are not. The hazards are highly concentrated in certain neighborhoods, and the benefits go mainly to investors elsewhere collecting profits. This is an inherent imbalance.

And if the benefits and hazards were distributed evenly across the community that still doesn’t assure a balance between development and safety. Weighing such a balance assumes that pluses and minuses can be calculated like a mathematical formula and a solution found. But what if circumstances make this impossible? Then the choice isn’t to have both development and safety — it’s one or the other.

Massively deadly chemical (Bhopal, India) and nuclear (Chernobyl, Ukraine; Fukushima, Japan) accidents left ruins surrounded by evacuated wastelands. Nothing comparable has happened yet with petroleum but a couple years ago in Canada an oil tanker train derailed and burned the center of a town (Lac-Megantic, Quebec) to cinders. Scores of residents died. The plans being made for oil storage and transport in Mobile contain the potential for similar or worse disasters. How could that balance development and safety?

The subcommittee made no attempt to balance economic development against the greatest environmental hazard. It was simply ignored. The city already has a throng of large petrochemical storage tanks and the planned expansions would add dozens. Most of these are near the waterfront just a few feet above sea level. The battering waves of a major hurricane could come ashore on a storm surge 20-30 feet deep. And they would bring chunks of debris serving as piercing projectiles.

Loose the contents from just a few of these tanks and the Exxon Valdez and BP’s offshore oil well become footnotes. The story history books will tell is the fate of Mobile’s river and bay.

Is such a catastrophe unlikely? Yes. Is it possible? Yes. Planners need to take this into account. The subcommittee didn’t address it in the slightest.

An Offer They Can’t Refuse?

Another awkward topic ignored was the temptation to evict. Although the subcommittee spoke openly about fashioning buffers by backing dangerous tanks away from the boundaries of industrial zones abutting residential ones, they did not mention the obvious prospect of doing the opposite.

This discussion pertained specifically to Africatown, where a giant tank farm wants to arise across the street from homes. Creating a broad buffer there by pushing the tanks back from the street and toward the water might leave so little land available for tanks that the project dies.

Mega tank farm plans across street from Africatown homes

But if the houses are removed then the buffer would be created on the other side of the street, and the tanks could fill the whole industrial tract as originally designed. While the residents might be defiant about clinging to their ancestral homes, what happens when they begin receiving pressure to leave plus attractive prices for selling out?

This would amount to eviction, achieved by financial means. Or legal means might be used. A state’s power of eminent domain has been expanding. Previously the government could compel the sale of private property only for plainly public uses, like highways and parks. Lately private developments like shopping centers and pipelines have been declared public enough for the land they need to be seized under eminent domain. Why couldn’t that reasoning apply to homes located where a tank farm needs a buffer zone?

My Brother’s Keeper?

The tanker trains arriving in Mobile come on the Canadian National railroad from the tar sands mining moonscape of Alberta province. But extensive tar sands strata underlie north Alabama. Prospectors are taking technical and regulatory steps toward extracting these deposits.

Activists in Mobile assume the motive behind much of the urge for expanding tank farms is to hold tar sands coming by train from upstate for transfer into ships. In that case, local officials who allow tank farm expansion are also allowing large swaths of the mining region to be gouged and polluted — because those tar sands won’t be mined unless the output can get to market by boat.

If the planning commission’s subcommittee cared about this they should have said so. They didn’t. Their decisions will influence whether north Alabama becomes a replica of wrecked Alberta. But they behaved like they care about nothing except the benefits or detriments inside the Mobile city limits.

In this loudly Christian area their attitude was: Hell, no! I’m not my brother’s keeper. Eff them. I’m looking out for me.

This myopia is especially astonishing in a port that will drown when the oceans rise. Continuing to dump annual megatons of greenhouse gasses into the air by burning fossil fuels will melt the polar ice and flood every seafront.

Even if all the tank farms anticipated here are built, Mobile’s contribution to this tonnage will be trivial. Every separate place’s will be trivial.

Just as during World War II in the U.S. everybody with a yard was expected to have a Victory Garden, and nobody’s individual Victory Garden won the war. Perhaps not even all the Victory Gardens together freed enough cropland to feed the soldiers. But these gardens displayed purpose and resolve. That’s what Mobile’s refusal to host more fossil fuel tanks would do.

Yet the subcommittee acted like they don’t care to be even their own port city’s keeper. In Florida, at least, officials have an excuse for such behavior. The governor has ordered them to delete from their vocabularies all such terms as global warming, climate change, melting icecaps, rising seas.

In Mobile officials do this voluntarily. Perhaps their silence springs from fear of political retribution if they acknowledge that those global trends result from fossil foolishness. But even if these officials stand among the dwindling corps who sincerely deny the obvious, they still ought to address it.

This has become a subject that no longer submits to silence. Too many people have become too anxious about it for deniers in authority to merely ignore it. They need to address it, if only to swat it aside. But the subcommittee said nothing.

When this issue reaches the full planning commission, they also will be tempted to maintain a politically safe silence. Then the city council.

To avoid singeing their fingers on the hot potato, they will let the planet continue to cook.

Imagine the reaction if they said instead that they will not permit the expansion of tank farms on the Mobile waterfront. And challenged all other port cities to do the same.

It would be a revolutionary act. Also sane and healthy.