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by danps

Commissioners pipeline meeting: strategy and why it’s worth the bother

5:33 am in Uncategorized by danps

Cross posted from Pruning Shears.

Previously: Report on the meeting, background, and the statement I prepared for it. In this last installment I’ll look at why we approached the meeting the way we did, and what we hoped to get out of it.

A group staging or participating in a public event should give some thought to how it plans to conduct itself. For instance, will it be compliant or disruptive? If the group believes the fix is in, the event sponsor is hostile and the whole thing is just a dog and pony show, disruptive may be the way to go.

Oil Pipeline

Oil Pipeline


The 2009 Congressional town hall meetings during the Obamacare debate were a good example of that. Show up, make lots of noise and drive home your points as vehemently as possible. These actions were arguably quite successful: While Obamacare ultimately passed, the confrontations may have served as a rallying point for conservatives in the following year’s wave election. Confrontation can come across as extreme and unreasonable, though, turning off neutral observers and keeping allies away. It’s a high risk/high reward strategy.

The other basic approach is compliance, and that too has risks and rewards. Compliance is probably best when one expects at least a sympathetic hearing, if not substantive results. No sense in alienating potential allies. The upside with compliance is coming across as sober, serious, and willing to work within the system. The downside is coming across as meek and ineffectual, and never actually being able to change the system. Depending on the situation, sometimes it’s best to be nice and polite; other times to make noise and rattle cages.

For the pipeline meeting, our group decided on the former. The commissioners have been very willing to listen to our members and to make time for us. I would say the pipeline meeting was an example of our efforts bearing fruit: citizens were able to express their concerns,1 and it was the first time the company answered questions before public officials. While it may have been late for this pipeline (see below), it’s something that could be repeated, hopefully earlier, with future ones.

Some might wonder why to bother showing up for a meeting like this. The pipeline is already about 80% built and is expected to be operational by summer. The meeting clearly happened very late in the process. Did it do any good? I think so, for a few reasons. The first is simple civic engagement. Citizenship is about more than showing up on election day to cast a ballot – it’s an ongoing process. We became aware of this project after it began, but still wanted to raise our concerns. To me, that’s part of being a citizen.

We also wanted to raise awareness for those who were still being approached about easements (particularly the shaky eminent domain assertion), and to the wider community. Pipelines are becoming a hot topic, and other residents of northeast Ohio might want to know about these kinds of grassroots efforts. We succeeded in that regard: our county paper ran two pieces on the pipeline in the following days, and Cleveland’s NBC affiliate WKYC ran a segment about it on their evening news.2 Other towns might want to have their own public meetings, and maybe learn from our example. Learn from our mistakes as well: we clearly would like to have had the meeting before the pipeline was nearly complete.

Then there is the simple act of going on the record. We know the state is enthusiastically in favor of fossil fuel extraction, and that the law has been fixed so that companies have little risk of local communities stopping them. But meetings like this can prompt a responsiveness from pipeline companies that “call our customer service help line” will not. If we can get just a modest improvement in how the thing is constructed, monitored and repaired, well, that’s better than what we’d have had otherwise.

If even that doesn’t happen, at least we will have a public record of our concerns. As I said in my statement, pipelines leak. Pipeline companies often do not detect leaks. There are real hazards associated with them. Should there be some substantial impact on our community because of it, at least we will be able to say: Yes, we knew that was one of the risks you posed. Don’t tell us no one could have known; don’t say it was completely unforeseen; don’t say some process had an unexpected blind spot or breakdown. We knew all of that from day one, we raised our voices about it, and that is precisely why we opposed it.


NOTES

1. If you are going to speak in public, consider preparing both a full statement and an abbreviated one. Sometimes things change at the last minute. In our case we expected to have three minutes each but it was shortened to one. At the meeting I made a number of hasty edits – crossing out lines and paragraphs of my prepared statement, adding rough transitions and grammatical changes, etc – and still didn’t make it through the shorter version. If you take an analytical approach it’s good to at least have note cards, if not a printed statement. If you plan to speak extemporaneously and from the heart, at least think about the major topic(s) you want to cover.
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2. WKYC has done a phenomenal job covering local oil and gas issues. I approached reporter Kristin Anderson after the meeting and thanked her station for that. I also told her the station has changed my opinion of local news. I’ve long had a jaded view of it, and written it off as devoted to stereotypical “if it bleeds it leads” sensationalism. WKYC, though, has shown that local TV news can provide invaluable coverage on the issues facing a community. Full credit to them for it.
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by danps

Eminent Domain and Corporate Need

3:57 am in Uncategorized by danps

Cross posted from Pruning Shears.

Thanks to rjs for the help in researching this post.

The Work Around: Build the pipeline ostensibly for oil but leave wiggle room to change that later.

Last week I linked to this article detailing how the relative lack of pipelines in Ohio is preventing fracking from taking off as the extraction industry would like. This means pipelines have moved front and center in some communities. Since the fastest way to assemble the land for one is to pressure citizens to sell under threat of seizure via eminent domain (ED), ED law is starting to get a much closer look.

The short version is that ED can be used for oil but not liquefied natural gas, meaning yes for traditional drilling but no for fracking. Companies have taken note of the distinction:

the eminent domain statute says only companies that ship ‘natural or artificial gas, petroleum, coal or its derivatives, water, or electricity’ through pipelines have a right force Ohioans to sell easements on their land. The eminent domain law doesn’t mention natural gas liquids.

To get around that, the company uses a different definition for the ATEX in court cases where it is citing eminent domain power, calling it a “petroleum product derived from natural gas extraction process.”

So here’s the conundrum for the fracking companies: they want to use the threat of ED to pressure homeowners into giving up their land, but they can’t invoke ED for the purpose the pipelines are being constructed for (until they can once again fix the law to their liking, that is).

The workaround appears to be this: Build the pipeline ostensibly for oil but leave wiggle room to change that later. Of course, an oil pipeline is troubling enough. Sunoco has demonstrated over and over and over again that its Ohio pipelines are leaky. Looking strictly at their track record around here, there is little reason for Portage County residents to feel confident in the soundness of this new pipeline.

As problematic as an oil-only pipeline would be (why here and now, incidentally? Have vast new petroleum reserves been discovered in eastern Ohio?), it appears Sunoco is at least leaving the door open for alternate uses:

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by danps

Commissioners’ meeting background: Pipelines, fracking and peering underneath the rock

4:50 am in Uncategorized by danps

Cross posted from Pruning Shears.

Last week I posted a statement prepared for our county commissioners regarding a pipeline under construction in Portage County. As I began outlining a report on the meeting I realized a good deal of context was needed for those not in the thick of it. Here is a bit of background.

Pipelines have traditionally been understood as carrying oil, but that has begun to change with fracking. Companies now want to use them to transport various fluids associated with that process, and in places that do not already have lots of pipelines there is a new push to construct them. As the Columbus Dispatch reported last May:

Officials of the oil and gas industry said the pipelines and the plant are safe and vital to their plans to develop Ohio’s Utica shale.

A lack of natural-gas processing, industry officials say, keeps shale wells from delivering to buyers and has slowed the pace of drilling and fracking.

So places that have been targeted for fracking are seeing a new interest in pipelines. The first step in this process is securing the land along the route, and this is also perhaps the shadiest part of the process. Pipeline companies subcontract out through what are called land men. These individuals go door to door attempting to negotiate the necessary legal agreement – and that is an exceedingly diplomatic, anodyne and generous way to describe how it sometimes works.

Land men are not governed by anything other than their scruples. Theoretically the companies paying them have requirements for conduct, but the arrangement more often seems designed for plausible deniability: Ask a pipeline company about allegations of unethical behavior and they will insist in the strongest terms that their contractors must adhere to the highest ethical standards – and usually that they’ve rarely or never had complaints about their land men.

Which is at least slightly disingenuous. After all, who can say what was discussed on someone’s doorstep? Some residents have reported being delivered contracts that were far different than the ones promised; others that they were told eminent domain (ED) was a foregone conclusion and signing the contract a mere formality. Good luck proving it, though. Unless the homeowner had the presence (and ability) to record the conversation, it would end up as he said/she said in a courtroom.

The land men basically pick off the low hanging fruit. Those reluctant to sign require a little stronger persuasion. In Portage County that has meant the pipeline company making what it has determined is a fair offer to buy the property, backed up by the threat of seizure via ED. These letters have a veneer of legal nicety, but an unmistakable subtext of menace and intimidation lurks behind them as well.

For instance, letters sent to residents say that the state of Ohio allows the company to seize the property via eminent domain – this will be a crucial topic in next week’s post – but that they would rather negotiate something agreeable to both. In other words, we can take it if we want; now let’s negotiate! (Imagine how successful those negotiations will be for the homeowner.) The good cop/bad cop routine continues as the company says it is

of the opinion that this offer is in excess of the fair market value…[W]e make this final and best offer in the hopes that the parties may be able to reach an amicable agreement and avoid unnecessary and costly litigation expenses. Please understand, however, that if you force us to commence eminent domain proceedings to acquire the easements, this offer is withdrawn.1

Basically, play ball with us or you’ll lose your land.

It should be clear just how much gumption it takes to fight a company on something like this. Most folks will be blindsided by it: There they were living their lives, not knowing they were in the way of pipeline company profits, and one day land men show up. They will generally not be knowledgeable about the laws in question nor will they have access highly specialized legal counsel. Most will be sufficiently risk averse (and sensible) to not want to risk what is likely their biggest single investment on an all-or-nothing showdown with the oil and gas industry. So they sign and get something instead of risking getting nothing.

That’s how these pipelines get created. But even though the playing field is so decidedly tilted in favor of big business, it still hasn’t been entirely cleared. More on that, and how it came up in the commissioners’ meeting, next week.


NOTES

1. I believe this short excerpt to be covered by the fair use provision of copyright law:

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

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by danps

Statement to county commissioners at pipeline meeting

7:23 am in Uncategorized by danps

Cross posted from Pruning Shears.

The following statement was prepared for Thursday’s Portage County Commissioners pipeline meeting. I’ll have a write up of the meeting next week.

Pipelines leak. Last summer’s spill in Arkansas was so severe that houses had to be demolished because of it. Last September there was a six inch pipeline spill of almost a million gallons in North Dakota. These are just two of the most dramatic examples from the last year. A little over a year ago a report commissioned by the Pipeline and Hazardous Materials Safety Administration (PHMSA) documented hundreds of spills throughout the country.

Oil Pipeline

“It is up to us to think in advance what those hazards might be, and to insist that business as usual is not good enough.”

So the prudent question for any community faced with a new pipeline should not be, will it leak? But rather, what happens once it does leak? The industry’s monitoring schemes are often inadequate. As Reuters reported of the North Dakota spill: “A robot, known as a ‘smart pig,’ detected anomalies during what Tesoro called routine internal inspections of the pipeline September 10 and 11.” Yet no action was taken on that. All the high tech monitoring in the world is useless if the company does not dedicate the resources to act promptly when a red flag is raised.

The industry claims to be vigilant about watching for spills, but the PHMSA reported that for hazardous liquid pipelines “[a]n emergency responder or a member of the public was more likely to identify a release than air patrols, operator ground crew and contractors.” That was the case in North Dakota: It was discovered by a farmer, and not disclosed to the public for eleven days. Will Sunoco depend on the citizens of Portage County to be its eyes and ears as well? If not, then what do we have beyond its earnest assurances?

Transparency and disclosure are important concerns as well. In Arkansas, an oil company consultant was put in charge of a no fly zone over the site of the spill, giving the company the ability to prevent the public from understanding the scope of the disaster. Has Sunoco made any binding commitment to not choke off the flow of information if the oil starts flowing?

Finally, who will be in charge of remediation? As a citizen I would greatly prefer our local public first responders be given the proper training and equipment to do so. Having private, company-funded contractors in charge means trusting that the company adequately funds the operation.

Safety does not have a return on investment, though, and over time it will be tempting – maybe irresistibly so – to skimp on it. Moreover, what transparency will there be for this privatized force? Will its employees be silenced by gag orders and nondisclosure agreements? The normal means of democratic accountability that apply to public servants will not apply to them. Vital safety information could easily be withheld.

Large conglomerates are profit-seeking entities, and they pursue those profits amorally. If they can maximize profit by being good corporate citizens and working in good faith with a community, they will. If they can maximize profit by cutting corners and stonewalling when a PR nightmare erupts, they will. It is no comment on the integrity of their employees to say that these impersonal entities will, if the bottom line so dictates, needlessly visit great hazard on a community and leave that community to fend for itself if something goes wrong.

It is up to us to think in advance what those hazards might be, and to insist that business as usual is not good enough. Pipeline companies have proved to be extraordinarily poor neighbors of late, and we should require a much higher standard of conduct for one that wants to move into our neighborhood.
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by danps

Capitalism takes on democracy

2:50 am in Uncategorized by danps

TPP Potential Members, dark green – currently in negotiations; light green – announced interest

Cross posted from Pruning Shears.

Lambert’s post on Sunday about the Trans-Pacific Partnership (TPP) looks at the deal from an important perspective: Its effect on popular sovereignty. He links to Dean Baker’s short post and highlights this: “The main thrust of the negotiations is to impose a regulator[y] structure in a wide range of areas — health, safety, environmental — which will override national and sub-national rules.” International agreements have always had that character, of course. Treaties, conventions like the Geneva Conventions and Convention Against Torture and so on also (theoretically) supersede national and sub-national rules. They would be worthless otherwise.

The idea that trade agreements weaken national laws is also not new. One of the sticking points in the NAFTA debate was that worker and environmental regulations would be degraded as part of a rush to the bottom. There’s a big difference between warning of a risk, though, and actually quantifying the impact afterwards. Perhaps the growing awareness of those real world consequences has helped many realize just how much those without a seat at the table stand to lose from capital-privileging acts like TPP.1

Unlike treaties and conventions, these agreements have a key third party: investors and corporations. Lambert notes (emph. in orig.) “the tribunal can order your government to pay an investor for damages to their investment which may, as we saw in the definition of investment, include expectations of a return” (lest you think he’s being alarmist, he also links to a couple of examples). A major trade agreement, negotiated in secret, in anticipation of being hustled through Congress does not smack of democratic process – even if all the forms are technically observed.

I realize many conservatives make a similar argument about loss of sovereignty – or freedom, their preferred term – through laws like Obamacare. Say what you will about Obamacare, though, it was passed by elected representatives over an extremely public, contentious and drawn out (remember the Gang of Six? Good times) process. It was challenged and upheld in court. One might reasonably believe it is not an accurate expression of popular will, but it is silly to believe it did not adhere to the spirit of democratic process.

The sovereignty angle of TPP resonates with me because it seems to be an emerging theme. I am seeing it on a topic I just happen to follow closely; it isn’t hard to imagine other areas having similar developments.

The resource extraction industry is trying to route around troublesome outbreaks of democracy, and the strategy seems to be a TPP-like subversion of citizens’ self-determination. For instance, last week three cities in Colorado voted to ban fracking within their city limits; they are now poised to be sued by oil and gas companies. The state’s Supreme Court has ruled in favor of the industry in the past, and if it does so again it will raise the question of just how much citizens may decide what they want in their neighborhoods.

Meanwhile here in Ohio, Sunoco is looking to use eminent domain to expand one of its pipelines. Pipelines have become a new issue this year because their perceived lack is seen as a drag on capacity. In fact, they have been in the news elsewhere quite a bit as well, usually for bad reasons. Like the ruptured one in North Dakota that was discovered by a farmer and not disclosed to the public for eleven days. (Not an isolated incident either. But it’s being contained and remediated!) Or the one in Arkansas that spilled so much oil homes now need to be demolished. And of course the Big Kahuna is still out there.

We know that pipelines stay in place for decades and are rarely inspected, and we know what to expect from that, so naturally residents of the affected areas are concerned. In addition, this particular item appears to be set up to carry more than just oil. Is it right to use eminent domain for unrestricted use by a for profit company? We aren’t talking about installing a municipal sewer system here. The purpose is not the common good but corporate enrichment; must citizens really have no say in the matter?

At both the macro and micro levels there appears to be a new enthusiasm for using public tools for private purposes, with the intention of circumventing democratic processes or subverting popular sentiment. No one expects government to work the way we were taught in civics class, but there are limits to the amount of cynical manipulation a polity will stand. Take away popular sovereignty and the consent of the governed will follow not too far behind. And at that point, things get ugly.


NOTES

1. Let’s stop lending a rhetorical hand to neoliberals by using their preferred terminology. These kinds of odious laws aren’t about free trade, so let’s not join the charade.
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