So They Sued Us

Summary

One day around dinner time the phone rang and it was someone from a multi-national oil pipeline corporation telling me they wanted to run a 24-inch pipeline across our farmland capable of transporting 300,000 barrels of oil a day in order to get it to a seaport so it could be sold on the world market. I told them my wife and I weren’t interested, that we didn’t want to participate in their private corporate project that would increase the global warming crisis through the further exploitation of fossil fuels.

They kept calling and mailing “sign here” documents by FedEx with prepaid FedEx return envelopes. We kept saying no. They offered more money. Finally we suggested they should just go around our property. They said they were Enbridge and they don’t go around anything – they go through it. And they offered more money. We said we didn’t want their money. So they sued us.

Eminent Enbridge Domain

Enbridge Pipeline Corporation is a multi-national corporation based in Canada. In the early days of the feeding frenzy created by the discovery of frackable oil in the Bakken oil fields of Western North Dakota, Enbridge moved in. They put on nice suits and went to visit with the kind and apparently trusting state government officials. I suppose they said they were world-wide experts in such matters and knew how to help North Dakota plan for the most efficient and expeditious way of capitalizing on this oil boom. That plan included declaring Enbridge to be a “public utility” and giving Enbridge the power of Eminent Domain. This gives Enbridge the authority to condemn land and take easements for the purpose of constructing its privately owned pipeline to get the oil out of North Dakota, through Minnesota and onto ships in Duluth/Superior where it can be sold to the highest bidder on the world market.

It is important to note that unlike a rural water line system or a rural electrification project that would provide services to the properties it traverses, in this case there would be no service provided to any property owners. Indeed the point is to get the oil out of the state as quickly as possible. The only oil to come out of the pipeline along the way would be from spills and leaks – phenomena with which Enbridge has much experience. More on that later.

This proposed pipeline, called the Sandpiper Pipeline, would be 24” in diameter and pump up to 300,000 barrels of oil each day from the Bakken oil fields to the Great Lakes.

Minnesota, to their credit, has been much more circumspect. They have not declared Enbridge to be a “public utility,” nor have they approved the pipeline route proposed by Enbridge. In North Dakota on the other hand, the Public Service Commission quickly and quietly approved the route Enbridge proposed by finding that it was a safe and suitable route based on the fact that Enbridge had reviewed it (their own proposal) and declared it to be so. It apparently did not occur to the Public Service Commission that such a process was akin to asking a fox for an objective assessment of a hen house.

Our Land

Both sets of my grandparents were North Dakota farmers. One of them in Grand Forks County where the land we now own and Enbridge wants to condemn is located. My father purchased this particular parcel (160 acres) in 1980 and it has been in our family ever since. When my parents died my brother and I divided the farm land they owned between our two families so it would be easy for us to pass it on to our respective heirs. That’s how my wife and I came to own this ¼ section parcel and the one adjacent to it.

Upon inheriting this land we told our children we considered it to be part of our family legacy. We told them we would continue to rent out the tillable acres to local family farmers and keep the rest in the Conservation Reserve Program just as my parents did.

When Enbridge contacted us we told them this story. And we told them quite a bit more. We told them about our personal values concerning the environment, the future, our investments and our sense of responsibility. We told them that from the time we were able to invest money in the market we focused on what’s called, “Socially Responsible Investments” and have specifically excluded investing in (among other things) fossil fuels and have instead tried to invest in the new technology of sustainable energy.

We told Enbridge and their attorneys that we drive cars and that we’ve enjoyed the boons that oil has provided… but that it’s time for change. As a society we’re scraping the bottom of the barrel with the desperation of “extreme extraction” just to prolong the status quo and the rusty technological infrastructure the companies own and are familiar with. We’re doing this in spite of the toxins and earthquakes of fracking, the flaring off of natural gas, and in spite of the incontrovertible science-based evidence of the effect it’s all having on the climate and the natural world upon which all living things rely and are a part.

We told Enbridge that when life presents you with an opportunity to take a stand for what you believe in – in this case the future health, balance and well-being of the world and all things in it – you are compelled by dignity to rise up to that opportunity.

We told Enbridge we brought our children up this way and that our children support what we are doing. We told Enbridge that if we failed to take this stand we would be hypocrites, and who wants to be hypocrites in the eyes of their children? Enbridge responded by offering us more money.

The Supreme Court and Eminent Domain

“Eminent Doman” is the power of a governmental entity to take private real estate for a public use, with or without the permission of the owner. The concept goes back at least as far as biblical times. It appears in the Fifth Amendment of the U.S. Constitution which states, “…nor shall private property be taken for public use, without just compensation.”

As the language indicates, the taking of private property has traditionally been limited to necessities of public purpose, such as building a community flood dike or a rural water line to serve residents along its course. There have been many legal battles over what is a “public use” and what is “just compensation.”

The scope of what is a “public use” took a dramatically expansive turn in 2005 in Kelo v. New London, a U.S. Supreme Court case. The case involved private homes in a neighborhood area of New London, Connecticut. Pfizer Pharmaceutical Corp. approached the City and said they wanted to build a corporate headquarters along the river where this neighborhood now stood. Their plan included a large parking lot and a park. Pfizer promised jobs and tax revenue. They City gave the New London Development Corporation the power to condemn the land for Pfizer, which it did. Many of the homeowners were understandably angry. Some of the homes had been in the same family for over a hundred years. Some residents, now elderly, had been born in their homes and never lived anywhere else. They got together and filed a lawsuit to protect their rights to their private property. The case made it to the U.S. Supreme Court which ruled 5-4 that this taking of private property for a corporation’s purposes was a “public use.”

After the homes were purchased by the City and either moved or destroyed, Pfizer merged with another corporation and decided to change its plans and move elsewhere. All the residents have been displaced, the City is out $78 million and the parcel of land is vacant as of 2014 except for part of it being used as a dump after a hurricane in 2011.

Curiously, although it was the four most conservative Justices on the Court who voted against this expansive interpretation of “public use” my wife and I have found very little support for our position among our Republican friends.

Jury Trial

Because we were raised to stand up for what we believe in, and because we raised our kids that way we have to do this. And even though it’s expensive it isn’t hard to do. Change comes from circumstances and pressures and tipping points. While it may be unlikely that our case is a tipping point, it is a circumstance and a pressure in a direction away from fossil fuels and more carbon in the atmosphere and toward a cleaner, sustainable energy future.

It is a contribution to the collective will to try and repair the damage of the carbon we put into the atmosphere and the increasingly dangerous effects on climate and weather around the world. Human civilization may find the will and the way to undo the damage and retrieve a sustainable healthy natural world like the one we inherited, or we may not. The great anthropologist Margaret Mead said, “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only things that ever has.” So we do what we can.

Under North Dakota law we have a right to a trial by a jury, and we are using that right. We didn’t sue this multinational pipeline corporation, they sued us. But first they got the North Dakota Public Service Commission to declare that they are a “public utility” so they could be in the catbird seat as they bully their way across the state and out into the world of corporate profit. We want to ask a North Dakota court if that was an unconstitutional delegation of the power of government to a private interest for a private purpose. Should Enbridge be able to trump our use and enjoyment of our property under these circumstances?

We also want to ask North Dakotans to think about their contribution to the increase of carbon in the atmosphere and their responsibility to the future generations of people, all other living things, and the sustainable natural systems upon which it all relies. Enbridge no doubt will argue vehemently that that is irrelevant to this case. They will say that climatic implications are none of our business, none of Enbridge’s business and none of the Court’s business. We will attempt to ask, “Well, whose business is it?” I’m confident Enbridge will try their damndest to kick that can down the road.

Although Enbridge has already begun to fight tooth and nail to exclude big picture considerations from this case – a case they initiated – it seems to us a precisely appropriate time, forum and set of circumstances within which to address these profound issues that affect us all. If not us, who? If not now, when?

Climate

According to the 2010 book Merchants of Doubt by Naomi Oreskes and Erik M. Conway, the same strategies (and some of the same people) are being used to muddy the waters on the global warming/climate change issue that were used by the tobacco industry to throw doubt and confusion into the connection between tobacco and health. The point is simply to keep a controversy alive in order to preserve the status quo (read power and profits). This practice is simultaneously morally reprehensible and financially successful.

The highly respect journalist Naomi Klein has done a remarkable job of investigating the facts and issues surrounding climate change and published her findings in a 2014 book called This Changes Everything. The facts and figures cited below come mostly from her work unless otherwise indicated. Thank you, Ms. Klein, for your courage, care and diligence.

Governments and scientists began talking seriously about the need for radical reductions in greenhouse gas emissions in 1988. Since then, while the merchants of doubt were plying their trade real work was being done by the scientific community as described here:

“Climate scientists agree: climate change is happening here and now. Based on well-established evidence, about 97 percent of climate scientists have concluded that human-caused climate change is happening. This agreement is documented not just by a single study, but by a converging stream of evidence over the past two decades from surveys of scientists, content analyses of peer-reviewed studies, and public statements issued by virtually every membership organization of experts in this field.”

– Report by the American Association for the Advancement of Science, 2014

Meanwhile in 2013 in the U.S. alone, the oil and gas industry spent $400,000 per day lobbying Congress and government officials – and that does not include campaign donations during election cycles (Klein, at 149). According to the Stern Review on the Economics of Climate Change fossil fuel companies receive from $775 billion to $1 trillion in annual global subsidies, and yet they pay nothing for the privilege of treating our shared atmosphere as a free waste dump (ibid at 70).

Upton Sinclair once said, “It is difficult to get a man to understand something, when his salary depends upon his not understanding it.” (Ibid at 46). Additionally, I think it is fair to say that many on the hardcore right feel compelled to deny the existence or at least the significance of climate change because accepting the realities upends their political philosophies premised on unregulated market driven societies. And they are right about that. But it is clear that minimally regulated capitalism is not going to voluntarily get us out of this crisis and, in fact, is the force driving us over the brink. However, the right had better wake up and smell the coffee because the old virtues of conservative ideology are needed in the process of resolving this crisis.

A Bum’s Rush

There is considerable speculation that the various oil interests are actively engaged in jamming the rail lines in order to exacerbate the need for a pipeline. They have created a situation where Amtrak passenger trains running between Chicago and the West Coast are forced to sit on the sidings in places like Fargo for many hours while oil trains and fracking sand trains tie up the rail lines. Similarly, the grain trains the farmers rely on to get their harvest to market are sidelined as well, creating a crisis in both storage and economics.

Why is this happening? Isn’t this a matter directly affecting interstate commerce and therefore subject to reasonable regulation and accommodation? Why does this privately owned oil that is nonperishable and is destined for the world market have unquestioned priority over the movement of our people and our food?

A related set of questions beg to be asked regarding the flaring off of natural gas. We are getting the old bum’s rush from the extreme extractors. The oil industry is controlling the conversation and thereby the big picture. We’ve been hornswoggled into taking for granted that this oil must be sought and sucked out and sold as soon as humanly possible, and damn the torpedoes. The torpedoes include for instance the rail crisis and the flaring off of obscene amounts of natural gas.

Neither the regulatory agencies nor the general public is challenging these anti-social practices. In fact, it would be reasonable to call them uncivilized practices. Why should we allow the horrendous waste of natural gas that is doing nothing but throwing massive amounts of carbon and other toxic pollutants into the atmosphere?

The oil industry tells us they have neither the practical technology nor the patience to capture the massive amounts of natural gas and pollutants they are releasing. My father taught me that if I can’t behave responsibly on the field, I shouldn’t be in the game.

Fracking

Among the most dangerous practices of the fossil fuel industry in their desperate use of extreme extraction techniques to maintain the status quo of their highly profitable and powerful energy industry is fracking.

A 2011 study by leading scientists at Cornell University shows the frightening contributions of fracking to the climate change crisis (ibid at 143-4). The study found that methane emissions linked to fracked natural gas are 30 percent higher than the emissions linked to conventional gas because the fracking process is messy and leaks at every stage of production, processing, storage and distribution. What makes this so exponentially terrible is that methane as a greenhouse gas if 34 times more effective at trapping heat than carbon dioxide according to the Intergovernmental Panel on Climate Change estimates.
“Furthermore, Cornell biochemist Robert Howarth, the lead author of the study, points out that methane is an even more efficient trapper of heat in the first ten to fifteen years after it is released – indeed it carries a warming potential that is eighty-six times greater than that of carbon dioxide. And given that we have reached “decade zero,” that matters a great deal. “It is in this shorter time frame that we risk locking ourselves into very rapid warming,” Howarth explains, especially because huge liquid natural gas export terminals currently planned or being built in Australia, Canada and the United States are not being constructed to function for only the next decade, but for closer to the next half century. So, to put it bluntly, in the key period when we need to be looking for ways to cut our emissions rapidly, the global gas boom is in the process of constructing a network of ultra-powerful atmospheric ovens.” (Ibid at 144-5).

Leaks and Spills

The largest onshore oil spill in U.S. history was caused by a ruptured Enbridge oil pipeline in a tributary of the Kalamazoo River in Michigan in 2010. Over a million gallons of oil spilled out contaminating about 30 miles of waterways, wetlands and untold numbers of birds and land animals.

“…it seemed that Enbridge had put profits before public safety, while regulators slept at the switch. For instance, it turned out that Enbridge had known as early as 2005 that the diction of pipeline that failed was corroding, and by 2009 the company had identified 329 other defects in the line stretching through southern Michigan that were serious enough to require immediate repair under federal rules. The $40 billion company was granted an extension, and applied for a second one just ten days before the rupture – the same day an Enbridge VP told Congress that the company could mount an “almost instantaneous” response to a leak. In fact, it took them seventeen hours to close the valve on the leaking pipeline. Three years after the initial disaster, about 180,000 gallons of oil were still sitting on the bottom of the Kalamazoo.” (Klein at 331).

Using data from Enbridge’s own reports, the Polaris Institute calculated that 804 spills occurred on Enbridge pipelines between 1999 and 2010. These spills released approximately 161,475 barrels of crude oil into the environment. (Wikipedia).

Where Are We?

Toxic emissions into the atmosphere are up by 57 percent since the U.N. climate convention was signed in 1992. (Ibid at 200). This alone is proof enough that polite, vague and voluntary solutions that don’t challenge free market capitalism are abject failures. Carbon released into the atmosphere sticks around up there for hundreds of years, trapping heat. (Ibid at 21). We can’t stop global warming before it starts. It’s too late. According to the International Energy Agency we have only until 2017 to take actions that will limit the rise of global temperatures to 2 degrees Celsius. (Ibid at 23). Given our collective inertia it seems impossible to believe we’re going to be able to stop global warming at 2 degrees Celsius.

We’re bogged down in a political and economic system that has things backwards. It behaves as though there is no end to what is actually quite finite (clean water, fossil fuels, and the atmospheric space to absorb their emissions) and yet insists there are strict limits on what is actually man-made and flexible (the laws, policies and financial resources that are adjustable to create a sustainable world).

“We know that if we continue on our current path of allowing emissions to rise year after year, climate change will change everything about our world. Major cities will very likely drown, ancient cultures will be swallowed up by the seas, and there is a very high chance that our children will spend a great deal of their lives fleeing and recovering from vicious storms and extreme droughts. And we don’t have to do anything to bring about this future. All we have to do is nothing. Just continue to do what we are doing now, whether it’s counting on a techno-fix or tending to our gardens or telling ourselves we’re unfortunately too busy to deal with it.” (Ibid at 4).

That is a telling quotation from Ms. Klein, and it describes very well why we believe climate change is indeed “relevant” in our defense of the lawsuit against us.

We believe we are on the right side of history, and that we have a right to choose not to let our private property be exploited by a multinational corporation against our wishes. We don’t think they should be able to condemn our land and take it by a state-granted power of eminent domain…a grant that allows them to keep an easement on our land even if they don’t use it for a pipeline.

James Botsford
May 15, 2015