Anti-Pipeline Activists, Eminent Domain Experts Gather in Atlanta

Anti-Pipeline Activists, Eminent Domain Experts Gather in Atlanta

JUNE 19, 2016

Written by: Mark Hand

Private property rights activists and environmentalists met in Georgia June 14-15 to discuss strategies for fighting energy companies’ growing use of eminent domain to build natural gas, oil and petroleum products pipelines on private property across the United States.


Many of the approximately 70 people who gathered in downtown Atlanta at the invitation-only conference came away hopeful that philanthropic organizations and other donors will choose to invest in a national organization as well as grassroots groups seeking to slow down or stop pipeline companies’ growing reliance on eminent domain.


The Rockefeller Family Fund, the Park Foundation and similar organizations typically have shied away from awarding grant money to groups fighting for private property rights, an issue often associated with political conservatives. “It’s been a real process to explain pipeline fights and property rights to progressive foundations who traditionally don’t interact in rural communities on property rights issues,” Jane Kleeb, founder of Bold Nebraska, a group that was instrumental in organizing farmers and ranchers against the northern leg of the Keystone XL pipeline, said in an interview.


Kleeb believes the time is right for a national organizing effort against the use of eminent domain for the construction of energy pipelines. “We have all the pieces. We have all the legal experts. We have the advocates and landowners. We have active pipeline fights, which you need in order to build grassroots momentum to be pressuring politicians,” she said.


But to succeed on the eminent domain front, more funds will be needed, explained Kleeb, who predicted deep-pocketed donors will be willing to chip in. “I think the foundations are ready. It will have to be a multimillion-dollar effort. We will need to convince other donors to come to the table to fund this effort,” she said.


Brian Jorde, an attorney with Omaha, Neb.-based Domina Law Group who represented landowners in the successful fight against the Keystone XL pipeline, noted the Atlanta conference was the first time a meeting had been held that brought together national experts on the use of eminent domain and people who have fought pipeline projects and won.


After spending two days in Atlanta, Jorde left the gathering hopeful a national alliance will be created to help landowners in their fights against pipeline developers. For the alliance to be successful, though, it must form a robust network of legal experts, industry experts, advocacy groups and donors, he said.


The Rockefeller Family Fund and the Park Foundation, along with GreenLaw, served as financial sponsors of the conference. Atlanta was chosen as the site because Georgia is one of the few states that has taken the side of property owners in recent eminent domain disputes. A new law, House Bill 1036, imposed a moratorium on building a petroleum pipeline until July 2017. The legislation was aimed at the $1 billion Palmetto Pipeline that Kinder Morgan proposed to carry gasoline and diesel fuel from Belton, S.C., to Jacksonville, Fla. A similar bill targeting the Palmetto Pipeline was passed in the South Carolina Legislature.


Conference attendees presented case studies on their efforts to stop pipeline projects. Georgia residents who lobbied for the passage of H.B. 1036 explained how they succeeded in getting the favorable legislation passed. “We had some of our rock star landowners in the room who either unfortunately went through the entire process of eminent domain and lost and have a pipeline on their property, or landowners who are currently fighting pipelines, like landowners fighting the Atlantic Coast and Mountain Valley pipelines. We also had indigenous people who are fighting the Alberta Clipper pipeline in Minnesota,” Kleeb said.


Constitution vs. Environment

Tonya Bonitatibus, who serves as riverkeeper and executive director for Savannah Riverkeeper, was one of the driving forces behind the passage of the Georgia and South Carolina moratorium bills. “The purpose of this meeting was to figure out if there is a problem nationwide, and we resoundingly learned that the answer to that question is ‘yes.’ Eminent domain is being abused for private gain,” said Bonitatibus, who helped organize the Atlanta conference.


Bonitatibus views the use of eminent domain by pipeline companies as primarily a constitutional issue, not an environmental one. “I don’t think landowners see it as an environmental issue either,” she said. “My most immediate concern is how do we get tools and how do we get help to the people who need it the most, and the people who need it the most are the people whose land is being taken away.”


Many of the attendees arrived at the conference with different priorities. However, all shared “the fundamental belief that somebody’s home should be their home and somebody’s land should be their land,” Kleeb said.


During environmental strategy meetings against the Keystone XL pipeline, Kleeb recalled how she and a few others would go into a corner of the room and say, “Man, we should really be taking on eminent domain,” because they viewed the private property argument as the most effective approach to stopping pipeline development. At the Atlanta conference, the entire room committed to mapping out the “lay of the land on eminent domain,” she said.


The use of “eminent domain for private gain” has gradually gained momentum over the past 50 years, with private corporations increasingly convincing governments their projects serve a legitimate public use. The “final crumbling” of eminent domain for legitimate public use, according to Kleeb, occurred in 2005 when the U.S. Supreme Court, in Kelo v. New London, sided with the city of New London, Conn., in its approval of a private redevelopment plan, which required the use of eminent domain to take residents’ private property and give it to a private developer.


Conservative pundits criticized the Supreme Court’s ruling in Kelo v. New London. But few right-wing property rights advocates have stood up for landowners who are seeing their property taken for energy pipelines projects. “They support every pipeline under the sun,” Kleeb said. “And there’s a hypocrisy there that should be highlighted.”


Building a National Network

Kleeb, like Jorde, is optimistic the Atlanta conference will lead to the creation of a structure similar to the coalition that formed to fight the Keystone XL pipeline. The umbrella organization will have a coordinator that will make sure all of the individual groups fighting pipelines are getting the help they need, she said.


Bold Nebraska, the group founded by Kleeb to fight the Keystone XL pipeline, recently opened affiliates in Iowa, Louisiana and Oklahoma under a new umbrella group called Bold Alliance. Kleeb expects her Bold Alliance will help landowners in other states, such as Virginia and West Virginia, in their battles against pipeline projects.


“Bold will serve as a national network for these pipeline fighters. For some landowner groups, they need funding to put an organizer on the ground who is going to organize all the landowner groups in a state. Some pipeline fighters need legal assistance. Some need white papers. We’re going to step in and serve that role,” she said. “It’s going to mean me raising some more money. But it is such a void in our community that I don’t see anybody else stepping up to do it, and we have the expertise to do it so we’re going to step up to do it.”


The conference organizers invited Megan Holleran of Susquehanna County, Pa., to tell the story of how she and her family lost their fight against Constitution Pipeline Co. LLC’s use of eminent domain to seize the family’s property to build a natural gas pipeline from Pennsylvania into New York. Based on a federal judge’s order, tree-cutting crews, protected by assault weapon-carrying federal marshals, were allowed to take over a portion of the Holleran’s property to cut down a large number of maple trees that the family used for its maple syrup business.


Less than two months after the crews cut down the trees, New York State denied a water-quality permit to Constitution Pipeline. The pipeline likely will not get built in either Pennsylvania or New York, although Constitution Pipeline still retains legal authority to control the portion of the Holleran’s property where the pipeline would have run.


“It was good to get a chance to share our experience and share some of what would have helped us in our situation,” Holleran said in an interview.


Holleran, who said her family still has not been compensated by Constitution Pipeline for the easement or the trees, believes something concrete will come out of the Atlanta conference that will help other landowners who are trying to prevent the government from allowing the seizure of their property. She was particularly impressed with the ideas and enthusiasm of Kleeb.


“She couldn’t have been more right about helping to make people feel less isolated and that they have a network of support and they have resources that they can turn to when they’re battling these massive companies when it feels so hopeless,” Holleran said. “Jane was very positive about getting people to think how it’s a group fight and not an individual fight.”