Byhalia Pipeline opponents’ fight for legislation to prohibit such developments will extend at least two more weeks while the Memphis City Council addresses community concerns about last-minute changes to a proposed ordinance.
The council on Tuesday delayed a final vote on two pipeline-regulating measures after Memphis’ anti-pipeline coalition asked for time to read changes meant to address what they saw as loopholes in the original language in the ordinance that applied only to the city.
One ordinance is a setback measure adopted by the Shelby County Board of Commissioners last month that would require 1,500 feet between an oil pipeline and residential areas. The other, which could replace the setback ordinance for the city, is broader and would give the council final say over various projects, including oil pipelines that would cross city property, including streets.
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The council agreed to push their decision on the ordinances to Nov. 16 at the request of pipeline opponents, including Memphis Community Against the Pipeline, Protect Our Aquifer and The Climate Reality Project: Memphis and Mid-South Regional Chapter. Group members requested a delay so they’d have time to read the amended right-of-way ordinance, which was not made public before the meeting.
The advocates took issue with oil pipelines being included in the definition of public utilities and an earlier exemption they say would have allowed for the construction of a new pipeline despite the regulation. The exemption was removed while other language was added regarding the public utility definition.
“I’m a private citizen. I’m not a public speaker,” coalition supporter Paul Klein told the council during the public comment period of the meeting. “I knew I had two minutes, and I knew this was so important, so I spent a lot of time reading (the previous version of the ordinance) — there was a lot. Now I’ve watched it be changed right before my eyes, but I can’t see the changes, so again, I implore you to delay,” he said.
The amendments were meant to patch what the coalition flagged as loopholes that could be exploited by fossil fuel companies. Now with time to review the measures, the council that was unanimous on stopping the Byhalia Connection Pipeline is wrestling with how best to regulate future projects.
The Byhalia Connection project, which was canceled in July, was a joint venture of Plains All American Pipeline and Valero Energy Corporation to expand the capacity of crude oil they could move across the country. The development’s route was through largely poor and Black neighborhoods in Southwest Memphis and atop the vulnerable Memphis Sand Aquifer, from which the city draws its drinking water.
Plains voluntarily abandoned the project after facing opposition from Southwest Memphis residents, MCAP, elected officials and national celebrities. However, many pipeline opponents worried that without legal barriers to block it, the project could be revived later. In their cancellation announcement, Plains did not commit to abandoning the project permanently, nor did it signal that it wouldn’t pursue another pipeline in Memphis.
Last month, the council passed an ordinance that keeps pipelines outside of wellhead protection zones, where Memphis Light, Gas and Water Division draws and serves water to communities. However, city planners said the wellhead protection areas only cover about 25% of the city.
For months, environmental groups’ hopes for full coverage rested on the city-county joint setback ordinance. The county approved its side of the joint ordinance, making it law for unincorporated Shelby County, but the city held off. Meanwhile, council attorney Allan Wade worked on a broader alternative ordinance.
For months, Wade has advised the council against adopting the setback, arguing it wouldn’t stand up in court if a company sues.
Wade’s proposed ordinance would apply to more developments than just oil pipelines. Before such projects could cross city property, including streets, it would need several evaluations and ultimately council permission.
Wade argued his ordinance is not only more comprehensive but legally defensible since it is modeled after existing telecommunications law and doesn’t single out oil pipelines.
Environmentalists aren’t opposed to Wade’s ordinance — if their issues are addressed — but don’t want it to replace the setback, they told the council Tuesday evening.
“We’re concerned that with those words in there classifying a crude oil pipeline as a public utility will be an opening for the pipeline to come back, which we do not want.” Ward Archer, president of Protect Our Aquifer, told the council. Opponents said a company could use that language to misrepresent their access to public utility powers such as eminent domain.
Wade said the groups’ concern was unfounded because the definition would only be used in the context of the ordinance and state law defines public utilities and their access to legal powers, such as eminent domain. He also added that he doesn’t believe Tennessee law gives private oil companies the power of eminent domain.
While Wade’s mention of state law is accurate, the coalition’s concern is that a company could still use unclear language to misrepresent its legal powers in court, Justin J. Pearson, co-founder of MCAP, said Wednesday.
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“You can tell me the legalese of public utilities but here’s the truth: When a multi-billion dollar company comes to your doorstep and you are a lower-wealth Black person … and they pull up Tennessee statute and say we have eminent domain, the only remedy is through the courts,” Pearson said.
“And if they (landowners) don’t have the resources to get a lawyer, they’re taking the info they’re getting as truth. The subsections you add to (the ordinance) don’t take away the power (the company) has in that interaction. Let’s not give them the power at all to use that in our communities.”
Plains sued Memphis landowners claiming eminent domain. They succeeded in their claim against Memphis landowner Joseph Owens, who said he couldn’t afford legal representation to fight the company in court.
MCAP later contested Plains’ claim to the power, arguing, like Wade, that Tennessee law doesn’t allow a private company to use eminent domain for a crude oil pipeline. MCAP’s case would have been the first to test the question in Tennessee, according to George Nolan, senior attorney for the Southern Environmental Law Center, but it died before it was decided when the company dropped the project.
Carrington J. Tatum is a corps member with Report for America, a national service program that places journalists in local newsrooms. Email him at email@example.com
Jacob Steimer is a corps member with Report for America, a national service program that places journalists in local newsrooms. Email him at Jacob.Steimer@mlk50.com
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