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Policy

Two major victories for environmental justice have been served this past week. The Atlantic Coast Natural Gas Pipeline project was officially cancelled as of Sunday, July 5 due to mounting costs and permitting uncertainty. The following day, Monday July 6, the Dakota Access Oil Pipeline, three years into its operation, was ordered to shut down by August 5, due to a federal judge’s ruling that the environmental assessment was inadequate and the risk too high to continue operating the pipeline. Both victories are results of grassroots movements opposing the large fossil fuel pipeline projects and fighting for the protection of sensitive natural resources and the rights of the communities adjacent to them.

The Atlantic Coast Pipeline was a proposed 42-inch-wide underground pipeline intended to carry natural gas 600 miles from the West Virginia mountains to the North Carolina coast. Owners and developers of the pipeline, Dominion Energy Company and Duke Energy Company, had hoped to increase the amount of natural gas they could provide to their customers in Virginia and North Carolina, at a cheaper price. The pipeline would have had to traverse a unique landscape, requiring the removal of trees and “blasting and leveling some ridgetops,” clearing a path which would have “crossed mountains, hundreds of water bodies and other sensitive terrain and burrowed underneath the Appalachian Trail.” Multiple compressor stations would also have been built in various communities along the pipeline’s route (typically, compressor stations are built every 40 – 100 miles along a pipeline).

Compressor stations compress the gas to a specified pressure that maintains the flow of the gas to its destination. Each compressor station has diesel, natural gas, or electric powered engines that compress the gas. New stations can have up to six or more engines running, each with its own smokestack. Air sampling around these stations has shown elevated levels of carbon monoxide, nitrogen oxides, sulfur dioxides, particulate matter, and other volatile organic compounds, hazardous air pollutants and greenhouse gasses. Because these stations utilize engines, they inherently pollute whenever they run, and during scheduled or accidental “blowdown” events, “particularly intense” pollution occurs “when pressure builds to the point where gas is vented directly into the air in order to prevent explosions.”

The project was first proposed in 2014 and has faced opposition from environmental groups and local communities who fear its detrimental human health and environmental impacts and effects on endangered species in the area, as well as on the marginalized communities along the pipeline’s route. Those who opposed the development project included “small farmers whose lands were subject to eminent domain, Native Americans, about 30,000, who live within a mile of the pipeline’s proposed route in North Carolina, and residents in Northampton County, North Carolina, where another compressor station for the project was being constructed in a census block where 79 percent of the population is Black.” Activist groups fought in court to halt or slow the release of land development permits for various sites along the proposed pipeline’s path.

Six years later the fight paid off. Investors in the project said, “the project’s estimated cost had risen to $8 billion from the original estimate of $4.5 to $5 billion … owing primarily to legal expenses.” The near doubling in cost and the uncertain delays associated with “other recent court decisions,” presented “new and serious challenges” to the project.

The Dakota Access Pipeline is a $3.8 billion pipeline, carrying almost 600,000 barrels of Bakken crude oil a day 1,172 miles out of the Bakken shale formation of North Dakota, across South Dakota and Iowa, to a shipping station in Illinois. The pipeline passes beneath the Missouri River which lies just north of and supplies drinking water to the Standing Rock Sioux Reservation that sits along the border of North Dakota and South Dakota. Permits for development of the proposed pipeline were originally denied by the Obama administration in December 2016. A full environmental review by the Army Corps of Engineers was ordered to analyze the potential for alternative routes for the pipeline and its impacts on the rights of the people of the Sioux Reservation as set forth in their treaty. However, in February 2017, soon after being sworn in, President Donald Trump signed an executive order to expedite the construction of the new pipeline. With that, the Army Corps of Engineers dropped the environmental assessment for the project, granted the necessary permits, and the pipeline was built.

The Sioux Tribe and activist groups continued to challenge the permits that provided the legality for the pipeline, and in June 2017 succeeded in convincing U.S. District Judge James Boasberg that a deeper assessment of the project’s impacts was necessary. Judge Boasberg allowed operation of the pipeline to continue, but ordered further review, stating that the Army Corps of Engineers “did not adequately consider how an oil spill under the Missouri River might affect the Standing Rock Sioux tribe’s fishing and hunting rights, or whether it might disproportionately affect the tribal community.” This kind of consideration is the concept of environmental justice; written policy that “aims to ensure development projects aren’t built in areas where minority populations might not have the resources to defend their rights.  

The Army Corps of Engineers conducted another environmental review which was completed in 2018, and again, stated that the new study “substantiated its earlier determination that the pipeline poses no significant environmental threats” and declared that their previous analysis was sufficient and no changes need be made. Environmental activist group Earthjustice and the Sioux Tribe again challenged the permits in court, arguing that the tribe was effectively shut out of the latest environmental review process and the evidence of potential environmental impact presented by their scientists and representatives was ignored. In March of this year, Judge Boasberg struck down the federal permits that had allowed for the building of the pipeline, stating that the Army Corps’ issuing of those permits was in violation of the National Environmental Policy Act, specifically in regards to “unresolved concerns about the potential impacts of oil spills and the likelihood that one could take place.” The Army Corps of Engineers was criticized by the Federal Court for “failing to address the Standing Rock Sioux Tribe’s expert criticism of its analysis, citing issues like potential worst case discharge, the difficulty of detecting slow leaks, and responding to spills in winter.” The Court also noted that the Dakota Access Pipeline’s parent company’s “abysmal safety record … does not inspire confidence,” and that that fact should have been taken into greater consideration from the start. With the ruling, the Court also asked supporters of the pipeline and its opposers to each “submit briefs on whether the pipeline should continue operating during the new environmental review.”

On Monday July 6, 2020, Judge Boasberg sided with the pipeline’s opposers, and ordered the Dakota Access Pipeline be shut down and emptied within 30 days so as to minimize potential risk while the Army Corps re-performs its environmental assessment per the required guidelines. In the 24-page memorandum put forth by the District Court of Columbia, referencing the question of draining the pipeline or not during the Army Corps’ new environmental impact assessment, the Court stated, “Although mindful of the disruption such a shutdown will cause, the Court now concludes that the answer is yes. Clear precedent favoring vacatur (the setting aside of previous decisions) during such a remand coupled with the seriousness of the Corps’ deficiencies outweighs the negative effects of halting the oil flow for the thirteen months that the Corps believes the creation of an EIS will take.” Essentially, the Court decided the severity of the potential dangers that the Army Corps’ assessment failed to address would be more costly than the estimated impact of draining the pipeline for thirteen months to up to “several years.” Thus, it is not worth it to continue operating the pipeline until those potential dangers have been adequately addressed.

Energy Transfer, the owner and operator of the Dakota Access Pipeline, however, has yet to halt the flow of oil, arguing, “We don’t believe he [Judge Boasberg] has the authority to do this.” The company claims, “it would take three months to empty the pipe of oil and complete steps to preserve it for future use.” On Thursday July 9, Judge Boasberg denied the request from Energy Transfer to halt the closing of the pipeline during the environmental review, and the case is now going to a panel of judges in the U.S. Court of Appeals for the District of Columbia Circuit.

Analysis

Despite the outpouring of opposition to the two pipeline projects, and the ensuing protest movements that developed, many supporters of the pipelines still argue for their benefits. Supporters of the Atlantic Coast Pipeline argue that the new pipeline would have promoted a cleaner alternative to coal and oil energy sources, as well as reduced fuel costs for consumers while creating thousands of construction jobs and generating new tax revenue for the region. According to the U.S. Energy Secretary Dan Brouillette, “The well-funded, obstructionist environmental lobby has successfully killed the Atlantic Coast Pipeline, which would have lowered energy costs for consumers.” He continued, “The Trump Administration wants to bring the benefits of reliable and affordable energy of all kinds to all Americans. Unfortunately, the same can’t be said for the activists who killed this project.”

Though lower natural gas prices and increased tax revenue may have been realized by the Atlantic Coast Pipeline, Lindsey Gilpin, founder and editor in chief of Southerly, a media organization covering ecology, justice, and culture in the South, said the increased jobs claim may not have proven so fruitful. She claims that in an interview with Dominion Energy Company, she was told that the new pipeline “would create a couple dozen permanent jobs.” That is only 24 permanent jobs. And of the thousands of construction jobs to be created, Gilpin says, “A lot of the construction jobs are very specialized. So many people in places I traveled through were saying these aren’t local jobs. They’re bringing in people from companies outside the region who know how to build pipelines, welders or people of a higher level of education or training. So locals weren’t actually getting those jobs that they were promised.” Environmental groups and many of the public are also aware that despite any economic benefits these fossil fuel infrastructure projects might provide, “it still holds back investment in other renewable energies.”

Proponents of the Dakota Access Pipeline also touted the creation of jobs, increased tax revenue, and cited the pipeline’s ability to “meet growing demand for oil shipments from North Dakota without the need for additional pipelines or rail shipments.” The decreased demand by the oil industry on the local rail systems as means of transport for the oil, would also, in theory, reduce shipping costs for farmers. However, it seems more people in these regions fear fossil fuel development projects more than they value them. “They’ve seen how the coal industry has decimated [other] communities, how it’s made a ton of wealth off Appalachian communities and then left them high and dry, with high unemployment rates. They left people sick and dying from pollution and black lung disease.” The public’s distrust in the fossil fuel industry, whether it be coal, gas, or oil, has begun to boil over. Gilpin reminds us that these lands that major pipeline projects cut through, have been in the families of these communities for generations. This is their home. “It might just seem like somebody’s backyard to a pipeline company. But to the people, it’s everything.”

The recent decisions to halt these two major pipeline projects is a testament to the power of environmental and cultural activist groups and grassroots movements. With the public’s increased awareness of climate change and the negative impacts that the fossil fuel industry and its infrastructure have on the planet and marginalized communities, “environmentalists and Native American activists, who routinely oppose fossil fuel pipelines because of potential spills and their contribution to climate change” are beginning to feel more “emboldened.” Montana farmer and Keystone Pipeline opponent Dena Hoff, remembers when in 2015 a pipeline next to her farm, running under the Yellowstone River broke, spilling 31,000 gallons of crude oil and spoiling the water supply for 6,000 people downstream. Hoff points out that “the years of protests against Keystone and other lines have made the public listen,” and that “There’s more to this argument than jobs and tax dollars.”

The closure of these two major pipelines illustrates a shifting landscape in regard to large fossil fuel energy projects in the United States. In a joint statement released by the Dominion and Duke energy companies, announcing the cancelation of the Atlantic Coast Pipeline project, they wrote, “This announcement reflects the increasing legal uncertainty that overhangs large-scale energy and industrial infrastructure development in the United States.” Furthermore, Dominion Energy Company coupled its decision to abandon the pipeline project, with the announcement that it will be selling most of its gas pipeline business to Berkshire Hathaway Inc. Even Rich Redash, head of global gas planning at S&P Global Platts said of the fossil fuel industry, “It’s going to be more challenging to expand, particularly if you’re in an area where the opposition is organized, better funded and supported by state and local elected officials.” Likewise, Jason Bordoff, founding director at Columbia University’s Center on Global Energy Policy says, “Courtroom fights and protests against pipelines have only gotten more intense. As that opposition gets more sophisticated, it will mean more delays and higher costs for projects that rely on federal permits.” According to Kelly Sheehan Martin, Director of the Beyond Dirty Fuels Campaign at the Sierra Club, “The writing’s been on the wall for a little while now … It’s a new era for how hard it is to build new massive fossil fuel infrastructure projects that would lock us in for decades.”

The cancelation of the Atlantic Coast Pipeline and the ruling to close the Dakota Access Pipeline, together, mark a progressive movement of environmental justice concepts into mainstream policy. Ryan Emanuel, North Carolina State University professor and citizen of the Lumbee Tribe of North Carolina, said of the Atlantic Coast Pipeline cancelation, “This is a really encouraging outcome for the marginalized communities along the pipeline route.” Emanuel remarks, “this apparent victory comes at an auspicious time in the United States for racial justice and conversations about the disproportionate affect policies can have on communities of color.” Even still, Emanuel believes that legislation “similar to the Clean Water Act of 1972, which set national water quality standards, is necessary to prevent the effects of environmental racism.” He continues, “Environmental justice, for better or worse, is kind of a buzzword in popular culture and we can construe it in different ways. Until we tighten up what we mean in ensuring environmental justice and preventing the impact of structural racism on marginalized communities in terms of what infrastructure we build and where, justice won’t be for all.”

Resources

Earthjustice

  • Earthjustice is the premier nonprofit public interest environmental law organization. We wield the power of law and the strength of partnership to protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. (The environmental group representing the Standing Rock Sioux Tribe). https://earthjustice.org/

Friends of Buckingham Virginia

  • The mission of the Friends of Buckingham is to preserve the natural resources and cultural heritage of Buckingham County. We are a group of Buckingham County citizens united to work with our county leaders to attract economic investment opportunities that benefit all our residents, and that contribute to a sustainable healthy environment. We are dedicated to celebrating our county’s diverse cultural heritage, our rural lifestyle, and to protecting our natural resources and last, remaining, wild places. Towards that end, we are committed to protecting our health and environment from any outside interests that seek to exploit our natural resources, such as the proposed Atlantic Coast Pipeline. http://www.friendsofbuckinghamva.org/friends/

Natural Resources Defense Council

  • works to safeguard the earth – its people, its plants and animals, and the natural systems on which all life depends. combining the power of more than three million members and online activists with the expertise of some 700 scientists, lawyers, and policy advocates across the globe to ensure the rights of all people to the air, the water, and the wild. https://www.nrdc.org/

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