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Eminent domain, environmental protection and religious freedom converge over pipeline

By , - Last modified: November 10, 2017 at 8:09 AM
Williams Partners LP construction manager Matthew Arnold overlooks a site in southern Lancaster County where a path is being bored under the Conestoga River for the Atlantic Sunrise natural gas pipeline.
Williams Partners LP construction manager Matthew Arnold overlooks a site in southern Lancaster County where a path is being bored under the Conestoga River for the Atlantic Sunrise natural gas pipeline. - (Photo / )

Malinda Clatterbuck is running out of options.

A surveyor knocked on the door of her home in western Lancaster County about three years ago to tell her an Oklahoma-based company by the name of Williams Partners wanted to run a natural gas pipeline through her yard.

She and her husband, Mark, have devoted time during almost each of the more than 1,000 days since then fighting that line. They joined and founded grassroots protest groups. They gathered crowds to attend regulatory hearings, called lawmakers, called prosecutors and called federal agencies. They learned the laws and studied nonviolent protest methods.

Little changed. Or at least not as much as the Clatterbucks and their thousands of fellow pipeline opponents would have liked.

Williams Partners started site work in September on the Central Penn natural gas pipeline, an extension of the company’s existing Transco line that runs from southern Texas to New York. The 186 miles of new pipes, snaking from Susquehanna County in northern Pennsylvania to southwestern Lancaster County, are part of the company’s Atlantic Sunrise initiative to create more connections between Pennsylvania’s gas-rich Marcellus Shale region and Williams’ customers: utility companies and power plants.

The pipeline’s route did eventually move off the Clatterbucks’ property, but the family and other likeminded people still oppose any pipeline construction in Lancaster County, or anywhere else. They risk arrest and devote hours of their time in order to protest, even though they know the pipes will likely be in the ground and crews long gone by summer.

A federal appeals court ruled Nov. 6 that Williams Partners must temporarily halt construction on the pipeline while judges consider a request from environmental groups to more closely examine the project’s impact. As of press time, though, it was not clear how long that order would set back the project from its planned summer 2018 completion.

People like the Clatterbucks worry about harm to the land, the possibility of natural gas explosions, the environmental impact of the fracking used to harvest the gas even before it hits the pipes. But atop of their long list of concerns is their unease with the fact that a company can use people’s private land to make a profit.

Federal law has long favored pipeline builders when it comes to eminent domain cases, with regulators saying the infrastructure provides a public good. As companies like Williams look to capitalize on the recently discovered energy potential of the Marcellus Shale, more pipelines will likely go in, and more people like the Clatterbucks will hear a surveyor’s knock on their door.

Between shale rock and a hard place

Companies have wide discretion when it comes to choosing properties on which to build, and they can thank World War II for that power.

The federal government started letting businesses use eminent domain to seize easements on properties for pipeline construction in the years during and after the war as a means to accommodate the needs of the war effort and the industrial boom that followed. Around the same time, Congress passed a law taking natural gas regulation out of the hands of local and state governments and putting it in the hands of federal regulators. Legislators hoped the law — the Natural Gas Act of 1938 — would decrease monopolization of the industry and keep prices low for consumers.

The Transcontinental Gas Pipeline, commonly known as Transco, was one of the first and largest pieces of infrastructure to go in the ground after these changes. Tens of thousands of miles of pipelines from other companies have followed, weaving their way under almost every part of the U.S., including Central Pennsylvania.

The federal Energy Information Administration expects companies will build thousands of miles of new pipes in Pennsylvania over the coming years because of the recently discovered potential of the Marcellus Shale, a formation of underground rocks running from New York, down through much of the western half of Pennsylvania and into eastern Ohio and most of West Virginia.

These rocks hold huge amounts of natural gas, created by eons of decomposition and trapped in pockets throughout the porous shale. Companies have extracted this gas by injecting pressurized material into the rocks in a process called hydraulic fracturing, or fracking.

Fracking in the Marcellus Shale has created a glut of natural gas in Pennsylvania, and massive opportunities for companies like Williams Partners to harvest it and sell it to power plants and utility companies, such as local provider UGI Energy Services.

Harvesting the gas benefits the public by lowering natural gas prices, increasing U.S. energy independence and creating jobs that come with pipeline construction, industry officials say.

Getting that gas to customers requires new pipelines. And pipelines require land. But not everyone who owns the land between the natural gas wells and the utility companies wants a pipeline in their yard or cornfield.

Because of the World War II-era laws and ones that followed, companies like Williams can seize the rights to build on private property without landowner permission through eminent domain — if federal regulators determine the project is for a public purpose and meets all environmental and other requirements.

Regulators have a reputation for giving the greenlight to most natural gas projects that come across their radar, said Michael Faherty, an eminent domain attorney and head of Faherty Law Firm in Derry Township, Dauphin County. And when regulators say yes to a project, landowners have little choice but to go along with the decision.

“This power is forceful, and the inclinations of the regulatory agencies and the courts are to allow the public purpose to be satisfied and the project to go forward,” Faherty said.

Companies usually invoke eminent domain as a last resort, attempting first to buy the right to build directly from the landowner. Williams took only about 30 of the roughly 1,000 landowners in the path of the Central Penn Transco extension to court for easement rights, said company spokesman Chris Stockton, and it made changes to the original pipeline route to acquiesce some landowners’ concerns.

Williams also reimbursed people not only for the easements but also the amount of space construction crews take up on properties and any impact the work might have on crop growth, Stockton said. Landowners still own properties where pipelines go in, and can continue using them for agricultural production, but cannot build structures like houses, garages or barns on top of them.

Still, not everyone wants a pipeline on their property. Some object to the principle of a company using their land for corporate gain, while others worry about the potential for pipes to explode — something that very rarely happens, but has massive potential for destruction when it does. Some people have grave concerns about the environmental consequences of leaks, disrupted soil and the fracking process that gets the gas to the lines in the first place.

The Atlantic Sunrise project specifically has drawn protests from hundreds of Pennsylvania residents like the Clatterbucks, as well as from national environmental rights groups and activists who have opposed the Dakota Access Pipeline in the Midwest. These opponents argue that the project offers little in the way of public good, at least for Pennsylvanians, because only about half of the workforce dedicated to the project is from Pennsylvania, and Williams plans to export at least a portion of the gas it harvests here overseas.

For these objectors, the law allows little recourse beyond taking the company to court to request more money for the right to build on the land. Faherty says most property owners have a good chance of increasing their reimbursements if they hire an attorney after a company surveyor makes that first knock on their door.

But having more money does little to comfort the people who feel like they have no way to refuse it.

Pipe dreams

Eminent domain issues are pretty much settled when it comes to Williams Partners’ Atlantic Sunrise project. The Federal Energy Regulatory Commission gave the company its last-needed go-ahead in September, and, until the Nov. 6 order to pause construction, the company was getting ready to begin laying pipes and drill tunnels along the extension route over the coming months.

Malinda Clatterbuck knows crews have already started clearing trees and digging trenches. She knows property owners have, voluntarily or not, already given Williams the easements it needs. She knows regulators have told the company that everything it is doing lies perfectly within the realm of law.

But these facts do little to sway Clatterbuck, who half-joking calls her two teenage children pipeline orphans because she and her husband, like many other parents opposed to the project, have devoted so much of the past three years to fighting the construction.

The Clatterbucks and the group they co-founded, Lancaster Against Pipelines, continue to organize protests in a last-ditch effort to at least draw attention to their cause. During one of those protests, police arrested Malinda and Mark Clatterbuck, their 16-year-old child and 20 other protesters for trespass after they blocked the entrance to a construction site.

The only hope protesters have of stopping the Central Penn line is from a religious freedom lawsuit filed by the Adorers of the Blood of Christ, an order of Catholic nuns in Lancaster County who own what might be the most hotly contested piece of land on the pipeline route.

The nuns drew national attention after they let protesters build an arbor and benches in the proposed construction route. Their lawsuit, filed against a Williams Partners subsidiary and the Federal Energy Regulatory Commission, claims their faith hinges on a belief that they need to act as good stewards to their land, and that regulators’ decision to build on their property without their permission violates their religious rights.

A federal judge dismissed the suit in September, but the Adorers have vowed to file an appeal. Williams, meanwhile, has targeted the property as its first priority for construction in what Stockton called an effort to “minimize disruption at that location.”

The Nov. 6 order to pause construction while courts consider pipeline opponents’ requests for an environmental study provides another small ray of hope for protesters. But past orders issued to companies doing similar projects have only temporarily delayed pipes from going in the ground.

Clatterbuck still holds out hope for change. Legislators, she said, could alter the law to give municipalities more power to say no to pipeline projects. Courts could more strongly enforce Pennsylvania’s Environmental Rights Amendment, which the state Supreme Court ruled earlier this year requires the commonwealth to offer certain protections to its natural resources.

Clatterbuck knows any of these reforms will take time, if they happen at all. So she protests, not knowing what else she can do now that the pipeline she has fought for so long seems all but inevitable.

“When you’re faced with such a grievous injustice,” Clatterbuck said, “I don’t know how you walk away from it.”

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Jennifer Wentz

Jennifer Wentz

Jennifer Wentz covers Lancaster County, York County, financial services, taxation and legal services. Have a tip or question for her? Email her at jwentz@cpbj.com. Follow her on Twitter, @jenni_wentz.

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