[Louisiana is one of the states, mostly Southern, where energy
companies use eminent domain to take property for oil and gas
infrastructure. Typically the seizures are in rural and poor areas
where political support for the oil industry is strong. ]
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‘THEY DO NOT NEED LOUISIANA’S PERMISSION’: PIPELINE COMPANIES
SEIZE LAND WITH EMINENT DOMAIN  
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Tristan Baurick
August 20, 2019
Southerly Magazine
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_ Louisiana is one of the states, mostly Southern, where energy
companies use eminent domain to take property for oil and gas
infrastructure. Typically the seizures are in rural and poor areas
where political support for the oil industry is strong. _

A sign is displayed on a fence on LaKoshia Robert’s family property
outside the small town of Lacassine, Louisiana. Roberts fears Bayou
Bridge Pipeline will take her family’s land., William Widmer/Redux

 

_(This August article by Tristan Baurick in Southerly Magazine was
just listed by the Institute for Nonprofit News as one of the Best of
Nonprofit News stories of 2019 in the Money, Power and Influence
category.)_

In the patchwork of rice fields and pastures spreading across
southwest Louisiana is a parcel Jay Lewis’ family has called their
own for longer than anyone can remember. “It’s been with us since
our great, great grandfather, maybe longer,” said Lewis, 50, as he
trudged through a soggy pasture on a cold January day in Jefferson
Davis Parish, which is about 10 miles from Lake Charles. “Every day,
I’ve been here. I’m a piece of this.”

He and his fiancée, Paola Salter, live in a small house between
mobile homes owned by other family members. To make ends meet, Lewis
and Salter trap turtles and pick blackberries from the wetlands and
woods behind their house. They aren’t wealthy, but having land makes
them feel that way. 

“We have freedom and peace of mind,” Lewis said. “If you don’t
have land, you don’t have nothing.”

Last year, he was shocked to learn that a Houston, Texas oil company
had Louisiana’s blessing to take some of his family’s land and run
a pipeline through it. Energy Transfer Partners was claiming eminent
domain, a power used by governments to seize private property for
public benefit, wherever it met resistance along the route of its
163-mile-long Bayou Bridge Pipeline. The expedited project, which
was completed in March
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serves as the last link in a pipeline network connecting North
Dakota’s Bakken oil fields with ports and refineries in Louisiana
and Texas. 

Louisiana isn’t the only place where energy companies use eminent
domain to take property for oil and gas infrastructure. Several states
— most of them in the South — have long granted oil and gas
companies this right, a process also known as expropriation. Seizures
used to happen infrequently and quietly, typically in rural or
impoverished areas where political support for the oil industry is
strong. 

Now, pipeline companies are asserting eminent domain rights more
boldly as they try to keep pace with the recent boom in domestic oil
and gas production. Construction is expected to speed up as President
Donald Trump removes barriers to new pipelines and streamlines review
processes. As a result, more landowners in Louisiana and across the
South could lose property rights with little compensation. 

The authors of the Constitution knew the power of eminent domain was
ripe for abuse. In the 5th Amendment, which addresses criminal and
civil legal procedure, they inserted “nor shall private property be
taken for public use, without just compensation.” 

The amendment made clear that owners should be paid when their land is
taken, but the term “public use” has fueled decades of legal
debate. Once considered a clear reference to amenities the public owns
or has a right to access, the definition was loosened by a 2005 U.S.
Supreme Court’s decision
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allowed New London, Connecticut to bulldoze a low-income neighborhood
and replace it with an industrial park. The court said that eminent
domain was justified because the park would spur economic growth. 

In her dissent, Justice Sandra Day O’Connor warned the decision
handed the power of eminent domain to private companies that would use
it at the expense of the poor and politically weak. 

“Any property may now be taken for the benefit of another private
party, but the fallout from this decision will not be random,”
O’Connor wrote. “The beneficiaries are likely to be those citizens
with disproportionate influence and power in the political process,
including large corporations and development firms.”

“The Founders cannot have intended this perverse result,” she
added.

Eminent domain has long been used by governments to build things that
serve the public, such as highways, schools, dams, or sewer plants.
But after the decision, oil companies began justifying it as economic
development in the public’s interest. They seized strips of land in
Kentucky, West Virginia, North Carolina, Texas, and Louisiana. 

The Bayou Bridge Pipeline raised the profile of oil company land
seizures like never before. Energy Transfer, one of the country’s
largest transporters of oil and gas, had already been in the news
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its Dakota Access Pipeline, a four state-spanning project that sparked
lawsuits and violent clashes between police and Native American
protesters. The pipeline’s opponents worried that a spill would
pollute drinking water for the Standing Rock Sioux reservation. 

Energy Transfer’s plan to expand the pipeline network into Louisiana
raised similar environmental concerns, but conflicts over property
rights arose after the company started claiming 30-foot-wide strips of
land, cutting trees and burying pipe without landowner permission. In
one lawsuit, Energy Transfer was found to not have filed necessary
paperwork before claiming land under eminent domain. 

For a private, for-profit company to assert such rights made no sense
to Lewis’ cousin, LaKoshia Roberts, a lawyer whose father is a
part-owner of Jefferson Davis Parish property on the Bayou Bridge
route.

“Eminent domain is a power reserved for governments, and even
governments have a limited scope for how they can use that power,”
said Roberts, a former assistant city attorney in Monroe, Louisiana
and legal counsel for St. Bernard Parish. “Even the government has
to jump through hoops. Bayou Bridge didn’t even do that.”

In most states, including Louisiana, an oil or gas company typically
must prove a pipeline will carry more than just its own product to
claim eminent domain rights. This shared use defines the pipeline as
a “common carrier,”
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to a rail line or toll road. 

Texas at least puts up a few legal hurdles like “checking a box that
you’re a common carrier,” said David Bookbinder, an attorney for
the Niskanen Center, a Washington D.C. property rights think tank.
“Even for Texas, Louisiana goes a little far,” Bookbinder said.
“It’s almost ‘do whatever you want whenever you want.’”

In Louisiana, companies don’t need a common carrier assessment or
certification before claiming eminent domain on a pipeline route. The
state is tougher on semi-trucks, which must submit a written
application, give public notice, conduct a hearing, and provide a
slate of safety protocols. 

Energy Transfer’s lawyers have used the argument that a benefit for
the oil industry is a benefit for all. “Courts in Louisiana have
repeatedly confirmed that a public purpose is served in growing the
state’s energy infrastructure and capabilities through oil and gas
pipelines,” the company’s lawyers said in court documents. 

Energy Transfer did not respond to repeated requests for comment about
its specific practices. The company has said it follows all
appropriate laws and regulations, and that the Bayou Bridge Pipeline
has provided construction jobs and other economic benefits to
Louisiana.  

Pam Spees, a lawyer with the Center for Constitutional Rights, said
that essentially, all an oil company has to do to claim eminent domain
rights is prove that they are an oil company. “In short,” she
said, “they do not need Louisiana’s permission before running
their pipeline through the state.”

Warren Perrin is one of the few people in the state to tussle with an
oil company over eminent domain and come away with something close to
a win. In 1997, his family discovered that a south Louisiana property
they leased to Texaco had been fouled by a well blowout. An
investigation found the property laden with oil, heavy metals, and
radioactive material. Some of the oil had seeped into adjacent
pastures where Perrin’s cousins grazed cattle. Perrin, a lawyer,
sued on his family’s behalf. His demand was simple: Clean up your
mess.  

“But things got real heavy,” Perrin said. “They did scorched
earth litigation.” 

The legal battle dragged on for 15 years. “When it looked like we
finally had them nailed to the wall, that’s when they tried eminent
domain,” Perrin said.

Chevron, which owns Texaco, used a subsidiary called Sabine Pipe Line
to seize the land. “They said it’s in the national interest; it
provides jobs and supplies the country with oil,” Perrin said.
“That’s the argument they make. Juries around here always buy
it.”

Perrin’s family decided to sell, but not without requiring the
cleanup of the surrounding pastures and a large payment that Perrin
declined to disclose publicly. But most eminent domain fights don’t
end this way, lawyers say. 

“It’s a David vs. Goliath challenge – billion-dollar
corporations vs. small landowners,” said Bill Quigley, a law
professor at Loyola University in New Orleans. 

Quigley was part of a team that represented a family in a lawsuit
[[link removed]] against
Energy Transfer over the seizure of land in the Atchafalaya River
Basin, one of North America’s largest wetlands, with roughly a
million acres of swamp, lakes, and bayou. The property owners argued
that Bayou Bridge construction crews entered the family’s 38-acre
parcel without permission before going through the eminent domain
process. 

“Energy Transfer didn’t want to wait,” Quigley said. “They
knew it was illegal, but they went into private property and cut down
trees and bulldozed the landscape.”

Out of 115 similar cases in Louisiana from 1943 to 2011, only three
landowners who tried legally defending their properties against
seizure by an oil or gas company were successful, according to an
assessment by Quigley’s team of lawyers. 

Bayou Bridge routed the pipeline through mostly poor, rural areas with
high percentages of black residents. “They’re going for the lower
income and the disadvantaged, and that’s not a coincidence,” said
Roberts, the Lake Charles lawyer. “You’re not going to find the
pipeline going through a property with a $400,000 house.”

Many properties on the pipeline route have been passed through several
generations and have dozens of owners, all of whom must agree on a
land sale. In some cases, property owners said Energy Transfer
preferred to negotiate with family members who needed money or were
less likely to put up a legal fight.     

Roberts said she repeatedly told the company’s representatives that
she was the family’s point of contact, but “they only wanted to
talk to my dad, who’s in his 80s and has severe emphysema, and is
absolutely terrified of having this oil company file a lawsuit against
him.”

Lewis, her cousin, said the poor members of his family were quick to
grant pipelines access for as little as $100. “They’re all older
and they know they can use that money for their prescriptions,” he
said. “They can’t hire a lawyer. They sell because they don’t
want this disturbance in their lives.”

Alexis Daniel, media relations representative for Energy Transfer,
told Southerly that the company has negotiated voluntary easement
agreements for more than 95% of the properties their pipelines pass
through in the U.S. “It is our goal to cultivate a relationship with
each landowner in order to negotiate a voluntary easement
agreement,” Daniel said. “While this is our first priority, we do
have legal options available when this is not possible.”

Hope Rosinski, a homeowner in rural Acadia Parish, agreed to a payment
for access to her land, but had second thoughts after she learned
about environmental concerns and legal challenges against the
pipeline. Energy Transfer obtained a restraining order against her,
and she was prevented from interfering with construction on a
30-foot-wide strip of land that passed through her backyard, according
to court documents. The company also threatened to post security. 

Many landowners are concerned about the risk of spills. “What one
oil spill would do is unfathomable,” said Theda Larson Wright, one
of the family members challenging Energy Transfer in the Atchafalaya
Basin case. “And this corporation has a terrible record of
spills.”

According to a report
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and the Waterkeeper Alliance, Energy Transfer and its subsidiaries had
527 spills and other hazardous incidents in the U.S. between 2002 and
2017, that caused an estimated $115 million in property damage and
nearly $6 million in fines for the company. The report said the number
of spills of crude oil and other petroleum products has increased over
the past decade: in 2015, there were 454 incidents, and incidents have
remained at elevated levels.

Energy Transfer says it has an excellent pipeline safety record. An
Energy Transfer spokesperson told _The Times-Picayune_ last year
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while 3.6 million gallons of oil may have spilled during the 15-year
period noted in the report, the company transports billions of gallons
of oil each year, and more than 99% reaches its intended
destination. 

If the oil wasn’t pumping through pipelines, it’d be posing bigger
pollution risk in trucks, trains or barges, said Gifford Briggs,
president of the Louisiana Oil and Gas Association. “Using a
pipeline is the most efficient and safest way to transport crude
oil,” he said. “The Bayou Bridge Pipeline will decrease highway,
water and rail traffic, making it safer for those communities (and)
increasing the overall health of our environment.”

In a December (2018) ruling
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settled the Atchafalaya Basin case, Judge Keith Comeaux decided Energy
Transfer had the right to seize the properties, but trespassed when it
began construction before finalizing paperwork. He ordered the company
to pay the three property owners $150 each. 

In asserting eminent domain, Energy Transfer has argued that the
pipeline is a critical part of the nation’s energy infrastructure.
The company’s website says the pipeline will “decrease our
reliance upon less stable foreign sources of crude oil.” 

But Energy Transfer’s 2017 study
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Bayou Bridge’s economic impact, done by a Louisiana State University
economist, indicates the oil isn’t for U.S. consumers —it’s
bound for overseas markets with higher demand. The U.S. Energy
Information Administration predicts
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continue, with domestic oil consumption remaining at current levels
through 2050 and foreign consumption surging by nearly 20%. The U.S.
is on track to produce about 12 million barrels of crude oil per day
in 2019 and 13.2 million in 2020, when it will likely account for half
of the world’s growth in oil and gas production. 

Federal energy regulators say the biggest challenge isn’t production
— it’s getting the product to market. In April, President
Trump signed two executive orders
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it harder for states to use permitting processes to block or slow
pipeline construction after New York and Washington called on
regulators to halt pipelines. 

Louisiana is cracking down on anti-pipeline protests. Last year, the
state passed a law
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it a felony to trespass at a pipeline or pipeline construction site.
Fifteen Bayou Bridge protestors have been arrested since the law was
enacted, but have not been charged. Similar laws
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been approved in Oklahoma, Texas, and Tennessee. 

Louisiana is currently reviewing permits for at least 530 miles of new
pipeline, including interstate pipelines like Tallgrass Energy’s
Seahorse Pipeline, a 700-miler that would start in Oklahoma and cross
much of Louisiana, ending near the mouth of the Mississippi River. 

Perrin, the landowner who fought Chevron, has little confidence that
protests or court battles will stem the tide. Pipeline opponents tried
to enlist him in the fight against Bayou Bridge, but he told them they
can’t win as long as eminent domain remains in the oil companies’
arsenal. 

“It’ll never change until we change the law,” he said. “But
the laws won’t change as long as the Texaco flag flies over our
capital. End of story.”  

_[Tristan Baurick is a coastal environment reporter for The
Times-Picayune | New Orleans Advocate. He was a Ted Scripps fellow at
the Center for Environmental Journalism at the University of
Colorado-Boulder and has written for The New York Times, Hakai, and
Audubon._]

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