COURTESY OF KATHERINE AASLESTAD
Peter and Katherine Aaslestad’s property in the Atchafalaya Basin, Louisiana
Thanks to a court ruling last Friday, there’s now a monetary limit on just how much pipeline companies can get away with. But the ruling failed to deal with a far larger question: When can private companies claim the power of eminent domain to take people’s possessions?
In a case that three Louisiana landowners had filed against the Bayou Bridge Pipeline Company, the state’s Third Circuit Court of Appeals awarded $10,000 and legal fees to each landowner—and set a precedent for such companies going forward. BBP claimed it had attempted to notify every affected landowner of the easement and its plans to start laying its pipeline, but it failed to contact some owners and elected not to wait to hear back from some it had contacted. Instead, the company trespassed and began building anyway.
“BBP made a calculated decision that violating the law was cheaper than following it, and the lower court’s ruling [which the appeals court reversed] let them get away with it,” said Pam Spees, senior staff attorney at the Center for Constitutional Rights and one of the attorneys for the landowners. “This decision is an important reminder to companies like BBP, and more importantly to small landowners, that these rights mean something.”
Peter Aaslestad, one of the landowners, pointed out that the $30,000 in damages may not be much to BBP, but added that there are hundreds of other landowners whose land the pipeline crosses through, many of whom were never contacted about the project. “The cost of business and the cost of building pipelines in Louisiana has just gone up because they potentially could face this with every ruling,” Aaslestad said.
“I’m very thankful for the decision,” said Dean Wilson, executive director of the conservation group Atchafalaya Basinkeeper. “Before, we didn’t know how far these companies can go.” Now, he added, “there’s a limit.”
Pipeline construction has deleterious effects on the basin’s ability to perform this function, endangering hundreds of communities.
The court’s language indicated its outrage. The company “not only trampled [the landowners’] due process rights as landowners” but also “eviscerated the constitutional protections laid out to specifically protect those rights,” the court wrote.
“These companies kind of get away with this, and it’s not any fault of the courts, it’s the fear of people taking them to court. You don’t see these type of cases coming to the courts,” said Misha Mitchell, a lawyer for Atchafalaya Basinkeeper and an attorney in this case. But while Mitchell says the court’s strong language was unusual, she said she was unsurprised that the broader issue of the private use of eminent domain wasn’t decided in her client’s favor.
Mitchell said that the landowners did a lot of work on the front end to prove the trespassing—something that was made more difficult by the land parcel’s remoteness. “The system is set up so that if landowners challenge the companies, they could potentially be on the hook for [legal] fees on the other side,” Mitchell said, “I was so impressed with Peter’s willingness.”
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The 162.5-mile pipeline is up and running, generating revenue for BBP. It travels through southern Louisiana, most notably through the Atchafalaya Basin, the nation’s largest river swamp, which is home to endangered species and old-growth cypress trees. BBP is a joint venture of Phillips 66 and Energy Transfer Partners, the company behind the Dakota Access Pipeline, which was recently ordered shut down while the U.S. Army Corps of Engineers—which enforces pipeline permits—conducts an environmental-impact assessment. Both companies also have a history of leaks and spills. BBP did not respond to a request for comment from the Prospect
“All over the country, pipeline companies have destroyed people’s land, often without even attempting to get permission, and dared the landowners to speak up,” said landowner Theda Larson Wright. “Well—we did. I hope this victory will encourage many others to as well.”
But the case, which the Prospect documented in March, was about more than just trespassing. The landowners also asked the court to consider whether the pipeline company’s use of eminent domain to seize the land was constitutional. They wanted the company to be compelled to prove that its use of the land was for a public good—a prerequisite, if imprecisely defined, for public domain.
“It brings into question what government means, what it means to live in a republic,” said Katherine Aaslestad (Peter’s sister). It’s really “crucial,” she added, that there be a broader discussion about the nature of eminent domain and the public good. But, she added, no one wants to take that on.
In particular, the constitutionality of a private company’s invocation of eminent domain wasn’t an issue that the court chose to consider, although, she added, “Pam [Spees] made a very strong case for that.”
“I feel that there’s some victory in that [BBP] had to go on record about what their claim to public good was, but they just did not establish that,” said Peter Aaslestad. “They only talked about things [that had positive public consequences] outside of the state of Louisiana.”
“I don’t know how [eminent domain] was upheld,” he continued, “except probably that the justices are scared because it would overturn so many other things.
“The fight goes on because the real issues of them using eminent domain for private gain are still there and are still valid,” he concluded.
Despite failing to win on the issue of establishing limits to when private companies can invoke eminent domain, Mitchell is optimistic. “There’s definitely a momentum in the country,” she said, “with all these fights. We will continue to demand review and consideration of the totality of impacts, the bigger-picture pieces of how these individual projects add up to affect the greater good.” For her part, Mitchell said, she wants to focus on accountability for pipeline companies.
It’s still possible that BBP will appeal the ruling.
Despite the landowners’ win, the pipeline’s damage to the environment is done. Constructed without adherence to the pipeline permit guidelines, the trenching required to bury the pipeline left spoil banks nearly 15 feet high, disrupting the flow of water and badly damaging fragile ecosystems.
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Basinkeeper’s Wilson said that spoil banks were so high they acted like levees, disrupting water flow and diminishing water quality. “That’s going to kill the swamp,” Wilson said, leaving it with lower oxygen content and fewer crawfish—a livelihood for some communities along the Mississippi River.
The Atchafalaya Basin acts as a natural flood abatement system for the river, keeping it from flooding its banks and drowning whole communities along its shores. But pipeline construction has deleterious effects on the basin’s ability to perform this function, endangering hundreds of communities. “Every year there’s more sand and silt and the basin has less ability to control the flooding and protect millions of people,” Wilson said.
Wilson said the BBP was the “most outrageous violation of the permits” the company had been granted as a condition of construction that he’s ever seen and the pipeline has done the “most damage to the swamps.” He added that the appellate court had refused to enforce the conditions for the permits. “They have a mess in there that is unbelievable. No other pipeline company has done the same amount of damage,” he said. Much of the damage, he said, can never be fixed.
“For that little parcel of land that belonged to my grandfather, it definitely makes me feel really sad that that’s where we are right now,” said Katherine Aaslestad. “That money, that $10,000, is supposed to represent justice in a case of land deprivation, water damage … and conscious and intentional trespass—as if $10,000 makes that OK. What disgusts me the most is that money is what this is about.”
