The Memphis City Council and Byhalia Pipeline agreed Tuesday to a temporary cease-fire in their fight over the project’s development and an ordinance against it while the council’s attorney reviews the measure and its effects, including legal ramifications.
The council’s Public Works, Solid Waste and General Services Committee voted without objection to hold the measure until its July 6 meeting after council attorney Allan Wade said he wasn’t involved in drafting the proposal and that it’s too broad.
“In my observation of how we’ve proceeded here, we have basically relied on outside lawyers to draft this ordinance and provide it to you,” Wade told the committee. “I’m not sure I have seen any effort by this body to do its due diligence that we would normally do if we were moving this down the road.”
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Attorneys with the Southern Environmental Law Center, which represents Memphis Community Against the Pipeline, helped draft the ordinance. George Nolan, a senior attorney for the SELC, said he sent the ordinance to Wade last week seeking his feedback, but didn’t receive a reply.
In return for the delay, Plains All American Pipeline, the company proposing the crude oil pipeline, will pause the project and drop pending eminent domain cases, Brad Leone, director of communications and government relations for Plains, told the committee. Attorneys for the company and council will create a written agreement, they said.
Council Chairman Frank Colvett proposed the hold after hearing Wade’s comments, saying he worried the council would hurt other businesses in the process of stopping the Byhalia Connection.
“It’s clear and obvious now that there are so many legal questions … our council attorney has not been consulted on,” Colvett said. “If your effort is to kill the coyote, don’t kill the family dog in the process. We don’t want to hurt our friends, and we don’t want to hurt good people.”
Justin J. Pearson, a co-founder of MCAP, said he’s disappointed by the committee’s decision and that the proposed ordinance would offer protection for the aquifer against potentially harmful projects beyond the Byhalia Pipeline.
“The lack of protection of our aquifer is irresponsible and we have to address it,” Pearson said. “Our leaders do not need to negotiate with this company. The pipeline is all risk to us and absolutely no benefit for Memphis.”
Pearson is also skeptical of the company’s pause, speculating they will continue to buy properties and threaten new landowners with eminent domain.
Councilman J.B. Smiley asked Leone if the company would agree not to buy more land for the project. Leone didn’t commit to Smiley’s request and said the company’s attorneys would work out details of their pause agreement.
Byhalia Pipeline — a joint venture of Texas-based Plains All American Pipeline and Valero Energy Corporation — announced plans for the Byhalia Connection Pipeline in 2019. The proposed route would connect the Valero Memphis Refinery and Collierville Terminal Facility in Marshall County, Mississippi. The route, which runs through several Black Memphis neighborhoods, has been characterized by critics as environmental racism.
The City Council began talks about an ordinance in February when members learned federal and state permits for the project did not evaluate risks to the Memphis Sand aquifer, where the city draws its drinking water. This left what council members have called a “regulatory gap,” where no government agency is responsible for protecting or regulating the aquifer.
Plains representatives have argued that since the project received federal and state permits, the ordinance reaches beyond city government authority. However, council members assert the Federal Safe Drinking Water Act requires the city to ensure clean water sources. Therefore the ordinance isn’t an overreach, but rather compliance with federal law.
Earlier drafts of the ordinance tasked the council with regulating the future storage and transport of hazardous materials. Councilman Worth Morgan expressed concern last month about unintended effects on businesses other than pipelines. Plains representatives also argued it would disrupt routine maintenance of existing pipelines, causing a safety risk.
The draft considered Tuesday sought to address those concerns by restricting only chemicals moved by pipelines and excluding underground storage tanks. It also has exemptions for routine and emergency maintenance on existing infrastructure and exempts liquified natural gas, at the request of officials from the Memphis Light Gas and Water Division.
“The substitute ordinance will reduce the scope of the ordinance, ease impact on business where possible, ensure routine maintenance and emergency repairs of underground infrastructure can continue uninterrupted, and bring additional voices from business, industry, and academia to the Underground Infrastructure Review Board,” the council said in a statement Thursday.
The ordinance creates the Underground Infrastructure Review Board to approve or deny the proposed development projects. The decision of the board can then be appealed to the council.
Its members would include a representative from the Memphis Division of Engineering, Public Works Division, Memphis and Shelby County Division of Planning and Development, MLGW, the council, the University of Memphis, two representatives from the Greater Memphis Chamber, and someone with “a proven track record of working to promote environmental justice” in Memphis.
Wade said allowing the board to make the decision on such projects is a constitutional problem because it would be delegating the council’s duty.
“We have always refused to give our power to private citizens. I cannot endorse or recommend this order for that reason,” Wade said. “I would strongly and always, really strenuously, advise you never to give your power away. The people have elected you to make the decision, not some underground review board.”
‘A flawed ordinance’
In the company’s presentation before the committee’s decision, Leone said he would be “frank” about their opinion on the matter suggesting a lawsuit.
“Quite simply, this is a flawed ordinance, even the newest version. We don’t believe it’s legally supportable, and if passed, we will likely challenge it,” Leone told the committee.
“Our coalition of state and national associations who oppose the ordinance is well funded and willing to litigate. It’s likely you’ve seen some of the advertisements over the weekend and received phone calls or emails from your concerned constituents.”
The coalition launched an advertising blitz, claiming the ordinance would hurt jobs. The ads have appeared on social media, television, radio, flyers and a page in the Commercial Appeal.
The project and opposition to the ordinance were also marketed through text messages and emails to Memphis residents from Energy Citizens, an organization that fights fossil fuel regulation funded by the American Petroleum Institute, and Google ads paid for by Democracy Data and Communications, a public affairs company.
Byhalia Pipeline has spent more than $40,000 on Facebook and Instagram ads since at least January 2020, according to Facebook’s ad library. Facebook took down five of Byhalia Pipeline’s ads because they weren’t marked as ads for “social issues, elections or politics,” violating the company’s advertising policy, the library shows.
About $7,000 more in advertising comes from a Facebook page for “Protect Memphis Jobs,” which appeared in April. The website lists organizations “dedicated to protecting jobs” including Plains, the Tennessee Chamber of Commerce and Industry, the Tennessee Fuel and Convenience Store Association, American Fuel and Petrochemical Manufacturers, the American Petroleum Institute and the Consumer Energy Alliance.
Ads from Protect Memphis Jobs don’t mention a pipeline but say the ordinance will cost Memphis jobs.
The Byhalia Connection website says the project will bring more than 500 direct and indirect jobs. Plains representatives did not answer emailed questions seeking details about the jobs.
Exaggerating job creation and downplaying a lack of quality and safety of the alleged jobs is a manipulation tactic used by fossil fuel companies, according to a report released last month by the national NAACP Environmental and Climate Justice Program.
The report uses as an example a television commercial produced by the American Petroleum Institute. The institute and the Tennessee Fuel and Convenience Store Association sent a letter to the council April 19 urging members not to pass the ordinance.
Plains and American Petroleum Institute representatives did not answer emailed questions about the NAACP report.
Another fight front
As MCAP continues its push to stop the pipeline through local government, they haven’t diverted attention from state regulators.
MCAP, the Southern Environmental Law Center, Protect Our Aquifer and the Tennessee Chapter of the Sierra Club demanded in a letter April 29 that the Tennessee Department of Environment and Conservation revoke Byhalia Pipeline’s Aquatic Resource Alteration Permit.
The request was made to David Salyers, commissioner of TDEC, on the grounds that Byhalia Pipeline violated the permit’s application guidelines by not disclosing they already have a pipeline that does what they say the Byhalia Connection would do.
The Byhalia Connection would connect two existing crude oil pipelines — the Diamond and Capline — but Valero already owns the Collierville Crude Pipeline System, which connects the Valero Memphis Refinery with the Collierville Terminal Facility in Marshall County, Mississippi, according to Valero’s filings with the Federal Energy Regulatory Commission.
Carrington J. Tatum is a corps member with Report for America, a national service program that places journalists in local newsrooms. Email him at firstname.lastname@example.org
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