In the early spring, Clyde Robinson was just one of several Memphis residents to be served a lawsuit from an unlikely source: the owners of the oil and gas Byhalia Pipeline. Mr. Robinson was offered $8000 for his land in Memphis from the pipeline. When he declined, Byhalia sued him instead. Now Robinson and several other Memphis residents have begun what appears to be a battle of David and Goliath proportions, although the outcome is yet to be decided.
The Byhalia Pipeline will connect existing pipelines from Plains All American Pipeline, L.P. and Valero Energy Corporation. The decision to locate the 49-mile pipeline next to an aquifer that supplies the entire city its clean water has been controversial, but Plains and Valero claim that this is a necessary project for the advancement of the US energy independence and the development of jobs, and that the risk of an oil leak is minimal. Equipped with the power of “eminent domain,” the oil and gas giants are preparing to sue residents of Memphis who refuse to sell them their land – like Clyde Robinson.
The Memphis Sand is the city’s largest Aquifer and main supplier of the city’s water, from which the pipeline would be built just feet away. The aquifer’s barrier is made up of very tiny particles of clay that act as a natural filtration system capturing dirt, dust, and other impurities at its top, and allowing clean water to seep beneath. While the barrier has protected the water from impurities for years, it is not impenetrable. Unlike dirt and debris, oil can easily seep through the clay particles contaminating the water.
The Byhalia pipeline companies claim that their pipeline will be safe, and will bring over 500 jobs to the US, but activist groups like “Protect Our Aquifer” (POA) and “Memphis Community Against the Pipeline” (MCAP) are protesting the pipeline, arguing that its extension poses too much of a health risk to communities and the environment, fearing that an oil leak from the proposed pipeline would devastate the city’s drinking water and endanger thousands of lives.
MCAP and POA have taken their concerns to court. In May alone, they rallied in support of Ordinance 5783 to protect the city from having to pay for any oil spill, and for the Shelby County Commissioners to pass a bill that would require 1,500-foot setbacks for any construction builds. Byhalia responded by striking an agreement with the Memphis City Counsel to delay the voting process of Ordinance 5783 until further notice.
Some African American residents feel that the Byhalia pipeline plans are an example of systemic racism in action, because the pipeline route would tear through mostly black homes and property. The shortest and most direct route for the pipeline would have crossed through wealthier non-minority communities, but this was never proposed as an option by Plains All American or Valero. Serious health risks have been alleged to be associated with the proposed construction, such as lower air and water quality, and residents are afraid that minorities and persons of lower income would be most negatively impacted if the pipeline leaked or emitted dangerous toxins. Research shows that their concerns have some basis.
Consider, for example, the argument of the Standing Rock protesters. In 2016, Indigenous and Native American groups in North Dakota protested against the Dakota Access and Keystone Pipeline projects, arguing that the pipelines would be too close to their settlement and could be a danger to the animals and people living there. They were met with tear gas and water hoses. The project moved forward on the basis that it would bring thousands of jobs to the Dakotas.
Just 3 years later, however, the Keystone Pipeline leaked over 380,000 gallons of crude oil into a nearby wetland, destroying natural habitats. A collaborative study between the Environmental Justice Health Alliance and the Natural Resources Defense Council published a 2019 report “Watered Down Justice,” revealing over 200,000 violations of the Safe Drinking Water Act (1979). Unsurprisingly, the number of violations and length of time during which the violations went unresolved was highest among low-income communities and minorities. Residential segregation and discriminatory zoning laws were directly correlated with lower water quality and higher number of drinking water violations.
INTERSECTION OF HEALTH-BASED DRINKING WATER VIOLATIONS AND RACIAL, ETHNIC, AND LANGUAGE VULNERABILITY ACCORDING TO COUNTY, JUNE 1, 2016 TO MAY 31, 2019.
INTERSECTION OF LENGTH OF TIME OUT OF COMPLIANCE AND RACIAL, ETHNIC, AND LANGUAGE VULNERABILITY BY COUNTY, JUNE 1, 2016 TO MAY 31, 2019.
While some families are willing to accept the pipeline’s payouts and promises of jobs in exchange for their land, many continue to protest the pipeline’s construction and pushing for the companies to move their pipeline elsewhere. In response, Plains All American is taking these residents to court and suing them for their land on the basis of eminent domain (The US Constitution’s 5th Amendment states “….nor shall private property be taken [by a governing body] for public use, without just compensation [fair-market value]”).
Eminent domain has been widely used by the federal government to obtain private property for the use of federal projects, including the construction of public buildings, establishment of military bases, development of transportation infrastructure, and even the creation of national parks. The federal government’s power of eminent domain is readily accepted by left-leaning groups but contested amongst right-leaning groups, who have been more open to the use of eminent domain in service of the private sector.
In theory, the issue remains controversial, with some scholars arguing that the 5th amendment refers exclusively to governmental bodies rather than to private organizations, but in practice oil and gas companies have often successfully seized homeowners’ land on exactly that basis – such as the Dakota Access and Keystone projects, which caused the aforementioned oil spills. The laws of eminent domain vary from state to state and are not clearly defined for such cases. Many of Memphis’s residents have said that the money the Oil and Gas giants have offered (based on the Fair-Market-Value of the homes in the area) is not worth their clean air and water. Their fate relies on the verdict of the courts.
I am a member of a small third party – the American Solidarity Party – that is devoted to “common ground,” the “common good,” and “common sense.” Those three commitments are helpful in thinking through the Byhalia Pipeline. If there is a likelihood that an oil pipeline will leak, as documented in history, then common sense says one should not build it over an aquifer that supplies clean water to the residents. Expanding an oil pipeline may bring jobs to the people of Memphis, but if the pipeline could cause long-term damage to the health and safety of those same workers and their families, then it would be counterproductive to those people even if you pay fair-market-value for their land. That’s corrosive to the common good.
The American Solidarity Party has a clear commitment to life, which includes taking measures to ensure the protection of life as well as improving and maintaining a certain level of quality of life. Housing, jobs, environmental and public health, and security are all part of protection and quality.
The ASP also understands that as stewards of this earth, we have a responsibility to both invest in the health of our land, as well as reap and benefit from its natural resources. Balancing these is a tricky, but necessary task. With respect to ASP’s “whole life” values, eminent domain should be limited to emergency situations, and only when “whole life” principles are thoroughly considered. Allowing private for-profit use of eminent domain in court should be avoided at all costs. When eminent domain is used by government, payouts should be above the “fair-market value” to the owners of property or land.
It isn’t yet clear who will come out victorious: Clyde Robinson or Goliath. What is clear, however, is that the battle over the Byhalia Pipeline illustrates the vital intersection of environmental justice and property rights.
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Arielle Williams is a 28 year old author from Texas. She loves her 2 cats, her husband-to-be, and her family. She studied ecology during her undergrad, and is interested in environmental health, public health, science, and religious studies.
Arielle, thanks for the instructive case analysis. Much appreciated. Jim Hanink