New Orleans – Under the United States Constitution, can private fossil fuel companies legally seize private property to build oil pipelines? Do private oil pipelines that threaten sensitive ecosystems provide a real service to the public, or do they simply pad the profit margins of fossil fuel companies and their wealthy investors?
On Friday, a state judge in rural Louisiana will consider these questions and more in a preliminary hearing on the most significant legal challenge to date against the Bayou Bridge Pipeline, a 162-mile oil pipeline that bisects much of southern Louisiana and the sensitive Atchafalaya Basin, the nation’s largest river swamp.
Most of the pipeline has already been built, and it’s expected to connect Louisiana refineries and export facilities to the Dakota Access Pipeline that faced sustained Indigenous-led resistance at Standing Rock in 2016.
Across the country, states allow for-profit pipeline companies to seize private land under laws governing eminent domain, which is the government’s right to expropriate private property for public use in exchange for compensation. Many rural landowners lack the resources necessary to challenge wealthy oil and gas firms. A sweeping ruling against the Bayou Bridge’s attempt to expropriate private property in Louisiana could curb the fossil fuel industry’s ability to ram infrastructure projects through local communities nationwide. The Iowa Supreme Court recently heard a similar legal challenge to the Dakota Access Pipeline that also threatens the industry’s power.
Energy Transfer Partners, Sunoco and Phillips 66, the three fossil fuel companies behind Bayou Bridge Pipeline LLC, had expected construction to be completed by now. However, construction was halted in September by a preliminary legal agreement after a showdown on 38 acres of private property in the Atchafalaya’s thick swampland, where landowners allege that pipeline contractors trespassed on their property and began building a final segment of the pipeline without legal permission. In an email, a spokesperson for Energy Transfer Partners said the company does not comment on pending litigation.
Continuing the legacy of Standing Rock, water protectors who have been fighting the Bayou Bridge Pipeline for months showed up in August to protest construction on the private parcel of land where pipeline contractors were accused of trespassing. Organizer Cherri Foytlin carried with her a letter from landowner Theda Larson Wright stating that it was the activists who had permission to be on the property, not pipeline construction contractors. Workers had already built much of the pipeline easement after clearing trees and grinding them into mulch. Wright said she and other family members with deep roots in Louisiana inherited the property, which has been in the family for generations.
“Yes, I did give them permission,” Wright told reporters at a press conference on Tuesday. “I asked Cherri Foytlin and everyone who is associated with her to be the eyes of my family.”
Still, Foytlin and other activists were arrested on the property during a series of actions aimed at disrupting pipeline construction. Local police and state parole officers employed to work on “private duty” by pipeline contractors arrested a total of 18 activists, according to Bill Quigley, a law professor at Loyola University New Orleans who is representing the activists and the landowners, along with the Center for Constitutional Rights. The activists were arrested on felony charges under a new state law that criminalizes civil disobedience at fossil fuel infrastructure sites.
“The law was changed by the oil and gas industry specifically to try to address protesters,” Quigley told reporters on Tuesday, adding that it currently remains unclear whether local prosecutors will pursue the charges in court.
After being sued by landowners and conservation groups for beginning construction without permission, Bayou Bridge Pipeline LLC filed its own lawsuit for the right to “expropriate” private land under eminent domain. Quigley said most landowners do not have the resources to fight wealthy fossil fuel firms, and those that do challenge expropriation are typically seeking better compensation. The Bayou Bridge Pipeline runs through thousands of properties in Louisiana, but the company has only had to win expropriation judgments in eight cases, according to a pre-trial memo filed on behalf of the landowners. This is the first case where landowners are asserting their right to property under the US Constitution and challenging Louisiana laws and regulations that give oil and gas companies a “free pass” to take private land, according to Quigley.
“[Oil companies] have a lot more resources than these individuals; they [have] law firms in several cities working on this,” Quigley said. “This is really David vs. Goliath, and Goliath has been running the show, until now.”
In September, the Iowa Supreme Court heard oral arguments in a case pitting Energy Transfer Partners against farmers and landowners who oppose the company’s plan to build the Dakota Access Pipeline on their land. At issue in both cases is whether such for-profit fossil fuel projects serve a necessary purpose for the public that justifies the seizure of private land. Unlike gas utility pipelines that bring fuel directly to consumers, for example, interstate oil pipelines primarily serve industrial extraction and processing facilities. The industry argues that oil infrastructure provides fuel for US consumers and pumps money in local economies. However, in both cases, environmental groups argue that fuel carried by the pipeline will be sold out of state or even overseas, all while threatening sensitive ecosystems with leaks and spills and exacerbating climate disruption.
“I don’t believe there should be any eminent domain for private gain,” said Peter Aaslestad, a landowner who is challenging the Bayou Bridge Pipeline construction along with Wright.
The pre-trial memo filed on Aaslestad’s behalf decries the lack of regulation of the oil and gas industry in Louisiana, where no state agency makes a formal determination as to whether a private oil company is fit to use expropriation powers typically afforded to public utilities, and whether the project itself serves “public and necessary purpose” that justifies the use of eminent domain. Instead, this determination is made in the courts, often after permits have been issued and construction has begun.
Energy Transfer Partners spokesperson Alexis Daniel told Truthout in an email that their opponents are “well aware” of the process for determining that a project such as the Bayou Bridge pipeline serves the public interest, but did not elaborate on what that process is, or respond to a follow-up email by the time this article was published.
Louisiana is politically dominated by the oil and gas industry, and the state court may side with the pipeline, now that state regulators have permitted the project and much of it is already in the ground. Quigley said that Bayou Bridge violated Louisiana laws governing eminent domain, but even if the court disagrees, Louisiana laws are themselves unconstitutional because they allow a private company to “exercise the power of the government to take property from people without governmental oversight.”
“If the landowners lose this case, which we hope we won’t, the idea would be to appeal that decision to the Louisiana Court of Appeals, then to the Louisiana Supreme Court, then to the US Supreme Court — which is very skeptical of private companies being given the authority to take private land,” Quigley said.