The fight by opponents of Byhalia Pipeline for legislation to ban such developments will extend for at least two more weeks as Memphis City Council responds to community concerns over last-minute changes to a proposed ordinance.
The council delayed the final vote on two pipeline regulatory measures on Tuesday after the Memphis anti-pipeline coalition asked for time to read changes intended to address what they saw as gaps in the original language of the ordinance which applied only to the city.
An ordinance is a setback measure passed by the Shelby County Council of Commissioners last month that would require 1,500 feet between an oil pipeline and residential areas. The other, which could replace the recoil ordinance for the city, is broader and would give council the final say on various projects, including pipelines that would cross city properties, including streets.
Byhalia connection pipeline
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The council agreed to postpone its decision on the orders until Nov. 16 at the request of opponents of the pipeline, including the community of Memphis against the pipeline, Protect Our Aquifer and The Climate Reality Project: Memphis and Mid-South Regional Chapter. The group asked for a delay so that they would have time to read the amended right-of-way order, which was not made public until the meeting.
Advocates have challenged the inclusion of pipelines in the definition of utilities and an earlier exemption, they say, would have allowed the construction of a new pipeline despite the settlement. The exemption was removed while other wording was added regarding the definition of public service.
“I am a simple citizen. I’m not a public speaker, ”coalition supporter Paul Klein told the board during the meeting’s public comment period. “I knew I had two minutes, and I knew it was so important, so I spent a lot of time reading (the previous version of the prescription) – there was a lot. Now I have seen it change in front of my eyes, but I can’t see the changes, so again I beg you to delay, ”he said.
The amendments were intended to correct what the coalition pointed out as loopholes that could be exploited by fossil fuel companies. Now, with time to revisit the measures, the council that was unanimous on stopping the Byhalia connection pipeline is grappling with how best to regulate future projects.
The Byhalia Connection project, which was canceled in July, was a joint venture between Plains All American Pipeline and Valero Energy Corporation to increase the capacity of crude oil they could transport across the country. Much of the development route traversed poor, black neighborhoods in southwest Memphis and at the top of the vulnerable Memphis Sand aquifer, from which the city derives its drinking water.
Plains voluntarily abandoned the project after facing opposition from southwest Memphis residents, MCAP, elected officials and national celebrities. However, many opponents of the pipeline feared that without legal barriers to block it, the project could be relaunched later. In its cancellation announcement, Plains did not pledge to abandon the project for good, nor did it signal that it would not pursue another pipeline in Memphis.
Last month, the council passed an ordinance that keeps pipelines out of wellhead protection zones, where the Memphis Light, Gas and Water division draws and serves water to communities. However, city planners said wellhead protection zones only cover about 25% of the city.
For months, environmental groups’ hopes for full coverage rested on the joint city-county ordinance on setbacks. The county approved its part of the joint ordinance, making it law for unincorporated Shelby County, but the city resisted. Meanwhile, counsel for the board Allan Wade worked on a broader alternative order.
For months, Wade advised the board against adopting the setback, arguing he wouldn’t stand up in court if a company sued.
The ordinance proposed by Wade would apply to more developments than just oil pipelines. Before such projects could cross city property, including streets, it would require several assessments and ultimately council permission.
Wade argued that his ordinance is not only more comprehensive but legally defensible because it draws on existing telecommunications law and does not distinguish between pipelines.
Environmentalists aren’t opposed to Wade’s order – if their issues are resolved – but don’t want it to replace the setback, they told council on Tuesday night.
“We are concerned that with these words classifying a crude oil pipeline as a utility, this is an opening for the return of the pipeline, which we do not want.” Ward Archer, president of Protect Our Aquifer, told the board. Opponents said a company could use this language to distort its access to public utility powers such as eminent domain.
Wade said the groups’ concern was unfounded as the definition would only be used in the context of the ordinance and state law defines public services and their access to legal powers, such as the eminent domain . He also added that he does not believe Tennessee law gives private oil companies eminent domain power.
While Wade’s mention of state law is accurate, the coalition’s concern is that a company could still use unclear language to distort its legal powers in court, Justin J. Pearson said Wednesday, co-founder of MCAP.
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“You can tell me utility legal jargon, but here’s the truth: when a multi-billion dollar business comes to your door and you’re a low-income black person… and they pull Tennessee status and say we have eminent domain, the only recourse is to the courts, ”Pearson said.
“And if they (landowners) don’t have the resources to get a lawyer, they take the information they get as the truth. The subsections to which you add (the ordinance) do not take away the power (the company) has in this interaction. Let’s not give them the power to use that in our communities at all.
Plains sued Memphis landowners claiming a prominent domain. They won their case against Memphis landowner Joseph Owens, who said he could not afford legal representation to fight the company in court.
MCAP then challenged Plains’ claim to power, arguing, like Wade, that Tennessee law does not allow a private company to use a prominent estate for an oil pipeline. The MCAP case was said to have been the first to test the issue in Tennessee, according to George Nolan, senior attorney for the Southern Environmental Law Center, but he died before it was decided when the company abandoned the project.
Carrington J. Tatum is a member of the body of Report for America, a national service program that places reporters in local newsrooms. Email him at [email protected]
Jacob Steimer is a member of the body of Report for America, a national service program that places reporters in local newsrooms. Email him at [email protected]
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