Court Decisions Boost Hopes of Pipeline Opponents

John Wathen of Tuscaloosa at Standing Rock in North Dakota to protest pipeline project. Source: John Wathen

An Alabama clean-water advocate has applauded a federal judge’s order to shut down, at least temporarily, a section of the Dakota oil pipeline in North Dakota. Opponents of the pipeline sought the order, issued on July 7, on grounds that it threatens the Standing Rock Sioux reservation’s drinking water and sacred grounds.

That and other recent court decisions have boosted the hopes of environment, public health and clean-energy advocates who seek to reduce or end the nation’s use of fossil fuels to generate energy. Even oil and gas industries say the “increasing legal uncertainty” that overhangs energy and industrial infrastructure projects will challenge their ability to contribute to U.S. energy needs.

John Wathen of Tuscaloosa, the longtime Hurricane Creekkeeper, said he is “very cautiously optimistic” about the order to empty all oil from the line by Aug. 5 while the Army Corps of Engineers conducts a formal environmental impact study. Wathen spent months in North Dakota in the winter of 2016-17 to support massive protests against the pipeline construction.

The Dakota Access project’s operator, Energy Transfer Partners, said it could take 90 days to empty the pipeline. Judge James Boasberg of the U.S. District Court of the District of Columbia turned down the company’s request for an immediate emergency stay and is considering its bid to put his decision on hold pending appeal.

Energy Transfer, in its latest motion, said, “The broad economic and environmental consequences for third parties, including the numerous states that strongly support continued operation of the pipeline, coupled with the irreparable loss of revenue to Dakota Access and its affiliates, far exceed any possible risk — much less any conceivable harm — to the tribe from a stay” of the judge’s order.

The ruling is one of multiple recent pipeline oil and natural gas developments hindering the fossil fuel industry. Among decisions this year alone are:

  • In a major victory for the Southern Environmental Law Center and other opponents, owners of the Atlantic Coast Pipeline announced they will withdraw from their project to move natural gas from the fracking fields of West Virginia across the Appalachian Trail to Virginia and North Carolina. Lawsuits from environmentalists and delays had increased the project’s price tag by $3 billion to $8 billion, according to The New York Times.
  • Similarly, in February, operators of the Constitution Pipeline said legal and regulatory challenges since that project was federally approved in 2014 had diminished the potential return on investment “in such a way that further development is no longer supported,” according to National Public Radio. The line would have carried fracked natural gas from Pennsylvania to New York.
  • The U.S. Supreme Court let stand a Montana federal court’s ruling to stop building part of the Keystone XL pipeline that would carry Canadian crude oil to Nebraska, on its way to refineries on the Gulf of Mexico. Opponents have said the TC Energy project would negatively affect whooping cranes and other federally protected species. However, the court temporarily gave life to a permit program that would allow other pipelines to cross waterways without stringent oversight from regulators, according to The New York Times.
  • New York and New Jersey denied state water permits for Transco’s Northeast Supply Enhancement project, which would have carried natural gas from Pennsylvania to New York City.

The anti-pipeline decisions rebut many of the Trump Administration’s moves to approve and speed up permitting for infrastructure. But the quickened pace has left the administration vulnerable to ever-more sophisticated legal challenges from states, environmentalists and, not least, landowners facing eminent domain threats to their property. The changing economic landscape – with renewable energy becoming increasingly cheaper and many state governments more prone to embrace carbon neutral fuels, are also factors.

“What we’ve been seeing is a shift in the importance of communities and landowners, and their voices, in this process,” according to Greg Buppert, Southern Environmental Law Center senior attorney who headed the Atlantic Coast Pipeline opposition. The center has an office in Birmingham.

Senior attorney Patrick Hunter added that the decision “means kids born today in North Carolina and Virginia won’t be burdened in 20 years by having to pay for a pipeline they don’t need. It means people can look forward to the cleaner energy future they deserve – not one dirtied by continued over-reliance on massive fossil fuel infrastructure.”

Jan Hasselman of Earthjustice, told The New York Times, “The era of multibillion dollar investment in fossil fuel infrastructure is over. Again and again, we see these projects failing to pass muster legally and economically in light of local opposition.” He is an attorney for the Standing Rock Sioux.

In Alabama, the danger of pipelines carrying massive amounts of fuel became clear in October 2016. That’s when the Colonial pipeline in Shelby County leaked 300,000 gallons of gasoline into a rural area. The subsequent attempt to repair it resulted a fatal explosion that killed two and injured several other workers.

Some 7,000 miles of interstate pipelines traverse the state. The most recent major new pipeline to be constructed in Alabama was the Sabal Trail, which encountered no protests and since 2017 has carried natural gas from Lee, Chambers, and Russell counties through southwest Georgia to provide power to central Florida.

Sabal Trail

From Tuscaloosa to North Dakota

John Wathen went to North Dakota in August 2016 as part of the national Waterkeeper Alliance, intending to stay 10 days in support of the tribe. He lived in a teepee through the bitter winter of 2016-17, joining several thousand Armed Services veterans, environmentalists and others protesting that the pipeline violated sacred Native American land and seeking a legal way to overcome Energy Transfer’s permit.

At some points, he said recently, they confronted armed militia and state police trying to stop the protests with water cannon and other aggressive tactics despite sub-freezing weather. He chronicled events there in his blog. Wathen said, “Once I got there in August, I got so engrossed in the movement. I figured out that it wasn’t just about the pipeline, not just about environmental concerns. These were treaty violations that were going on for generations. The U.S. has never honored a single treaty signed with a Native American nation, and this is what this was about.”

The Creekkeeper is passionate about improving the environment and calling out anyone he finds polluting the land, water or air.

“I’m angry about how things are turning out now,” Wathen said. “It seems everything I’ve done the last almost 40 years as an environmentalist is in retrograde. Our entire movement that came in in the 1970s and culminated in the Clean Water Act, the Clean Air Act, and other laws have been rolled back in the Trump administration – we’re going to have to go back and re-do everything. Every time Trump pulls one of his executive orders, we all have to go into a reactionary mode to defend the law we already got passed.

“I feel like I’ve been fighting these same knot-heads for decades and now we’re getting the same results that we started out with,” he added.

Despite the discouragement, he still has hope: “In my line of work, if you ever lose sight of hope, you need to quit and walk away,” he said. “Without hope, you ain’t going to accomplish nothing.”

Staying Warm in a Teepee

As for the weather conditions in North Dakota, Wathen said, “Southern boys don’t know nothin’ about winter. During the worst, we often had winds of 50 to 60 miles per hour and temperatures 20 to 30 degrees below zero.”

Yet, he said, he stayed comfortable in his teepee with a small propane heater going. And a Sioux friend later told him the structure’s design made it perfect for self-isolation during the current coronavirus pandemic. “The fire’s in the middle, and air’s coming in from under the skirts (bottom edge) so everything you breathe out is pulled up through the smoke hole,” Wathen said. “Native Americans used it to quarantine members of their tribe who got sick. They put them in the teepee and always stayed on the opposite side of the fire from the sick one.”

Following a surgery last year from which he’s now recovered, Wathen wants to put his teepee back up at his residence. “Only thing is, in the South, if you don’t keep a fire or heater going, you’ll have a mildew issue,” he said.