In this article, we’ll feature four contentious pipeline build-outs in the Eastern United States, show ways in which those pipelines impact natural and human communities, and provide examples of how environmental advocates have challenged these projects, with varying degrees of success.
In December 2019, Plains All-American and Valero pipeline companies announced plans to build the 49-mile Byhalia Pipeline through southwestern Tennessee and northwestern Mississippi. The proposed Byhalia Connection Pipeline is a 24-inch, high pressure (1500 psi) conduit, conveying crude oil coming Oklahoma, bound for the Gulf coast. The pipeline, which is designed to carry up to 420,000 barrels of oil a day, provides a link between the Diamond Pipeline to the west and the Capline Pipeline to the east. Construction is planned to begin in early 2021, and be completed by year’s end. Plains All-American insists that all safety precautions are being considered, but the outcry among residents and environmental advocates has been considerable.
Many factors—environmental, geological, social, and economic—have emerged as reasons that this pipeline should not move ahead. And industry most certainly didn’t count on pushback from the local community. Residents, allies, and the media have risen up to challenge the project. In this article, we’ll take a look at the story from various perspectives, augmented by FracTracker’s mapping insights.
UPDATE: On Friday, July 2, 2021, Plains All American announced that it would be abandoning its plans to build the controversial Byhalia Connection Pipeline. As one activist involved in the fight proudly stated, “We’ve shown them that we aren’t the path of least resistance. We are the path of resilience.” Read more about this momentous victory for the people of South Memphis here.
Environmental and hydrological
Demographics and disaster preparedness
This interactive map looks at the various risks associated with the proposed Byhalia Connection Pipeline. The map contains all of the data layers related to the topics in this article. Scroll down in this article to find interactive maps separated out by topic. All data sources are listed in the “Details” section of the maps, as well as at the end of this article. Items will activate in this map dependent on the level of zoom in or out.
View Full Screen | Updated March, 2021
The 49-mile route of the proposed Byhalia Connection Pipeline passes through a patchwork of rural, suburban, and urban landscapes. Along the route, the pipeline would cross seven named waterways — Johnson Creek, Hurricane Creek, Bean Patch Creek, Camp Creek, Short Brook, Camp Creek Canal, and Coldwater Creek — and also pass immediately adjacently to a nearly 5-mile-long wetlands complex that surrounds the Coldwater River. But the natural environment is home to many more waterways than those that have official names on topographic maps. According to FracTracker’s inspection of National Wetlands Inventory data collected by the United States Fish and Wildlife Service, the proposed pipeline crosses or touches 62 streams in 102 separate locations, 25 forested wetlands, an emergent wetland, 17 ponds, and one lake.
Close to the City of Memphis, 0.8 miles of the pipeline would run directly through the Davis Wellfield Wellhead Protection Zone. The proposed pipeline is located over the extraordinary Memphis Sands Aquifer, which provides potable water for more than 400,000 people. Memphis Light, Gas and Water (MLGW) Company pumps water from over 175 artesian wells in Shelby County, Tennessee, alone—right in the path of the pipeline route. The aquifer itself is a sensitive resource, already under demand by the human population of the area, as well as many industries such as breweries and as a supply of cooling water for a nearby power plant.
Memphis Sands Aquifer is part of the larger Middle Claiborne Aquifer, a groundwater and geological unit in the lower Mississippi drainage. Technically speaking, the Memphis Sands portion of the aquifer is located in Tennessee, but is continuous with the Sparta Sands Aquifer, located in Mississippi. In the eastern portion of the Byhalia Connection’s proposed route, wetlands along Coldwater River are directly part of the recharge zone of this aquifer.
To learn more about the hydrologic features that may be impacted by the proposed Byhalia Connection Pipeline, explore our interactive map. When this map is viewed full-size, you can choose to view additional layers from the drop-down Layers menu.
View Full Screen | Last updated March 2021
The Memphis Sands Aquifer lies 350 to 1000 feet under Memphis (see Figure 1), and spans an area of 7500 square miles, roughly the size of Lake Ontario. “It’s one of the best (aquifers) in the world in terms of thickness, aerial content, quality of water”, according to Roy Van Arsdale, Professor of Geology at University of Memphis. Under Shelby County alone — where Memphis is located — the aquifer contains approximately 58 trillion gallons of clean water. Over time, the aquifer has seen threats from overpumping, as the population of Memphis grew. In addition, industrial pollution has turned up in some samples, including cancer-causing benzene. Policy protections on the aquifer have been lacking, although there is increasingly vocal public awareness about the need for more comprehensive groundwater resource protection in the area.
Figure 1. Cross-section of aquifers under Memphis, TN. Graphic modified from here.
Although water withdrawals from the aquifer have declined significantly since 2000 due, in part, to more water-efficient household appliances that reduce demand in comparison with older models, the MLGW pumped 126 million gallons a day from the aquifer in 2015. Consequently, the level of the aquifer has been rising in recent years, as the rate of recharge has exceeded use.
The courts have suggested that the water in the aquifer is an intrastate resource, and that therefore, Mississippi cannot have sole governance over the extraction of the water within its state boundaries. Instead, usage should be through “equitable apportionment.” Further arguments are still pending, as of late 2020. In short, as Figure 1 shows, withdrawal and recharge of the aquifer do not respect state boundaries.
The details of water law, and who can tap into these, and other deep, ancient aquifers, are complex questions in which agriculture, ecology, geology, and technology bump up against each other. All of these interests, not to mention human health, could be heavily impacted by a crude oil pipeline rupture or other accident that resulted in contamination of this groundwater resource.
Crude oil spills release a panoply of volatile organic compounds into the air and water that are extremely harmful to human and environmental health. These include benzene, ethylbenzene, toluene, and xylene. Polycyclic aromatic hydrocarbons (PAHs), such as carcinogenic benzo[a]pyrene, are also released. In addition, if the oil combusts, hydrogen sulfide gas, as well as heavy metals, including nickel, mercury, and cadmium, will become airborne.
Figure 2. Observed/documented oil spill-induced acute and chronic human health effects. Source: Guidance for the Environmental Public Health Management of Crude Oil Incidents, Health Canada (2018).
The take-away is that crude oil spills from pipelines are not uncommon, result in environmental damage, impacts on the health and safety of workers and nearby residents. Most importantly, despite monitoring and inspections, pipelines fail. A partial list of pipeline failures is shown in the sidebar.
Within the 2-mile buffer of the pipeline, there are 20 facilities that the United States Environmental Protection Agency (US EPA) lists in its Toxic Release Inventory (TRI), including several chemical plants associated with hydrocarbon extraction. Carcinogens such as polycyclic aromatic compounds, benzene, styrene, dioxins, and naphthalene are just a few of the compounds produced by facilities owned by Valero Energy Corporation, Drexel Chemical Company, and other companies within the 2-mile buffer zone of the pipeline, which compound the risks to the populations there. In addition, while the TRI lists exposure to toluene and xylene from these facilities, neither are categorized by EPA’s TRI database as a carcinogen due to a lack of data; however, their deleterious impacts on the central nervous system are undeniable, and well- documented (see examples here and here).
View Full Screen | Updated March, 2021
In this interactive map, you can see sites in the proposed Byhalia Connection route that are listed in the TRI, as well as civic facilities like schools, daycare centers, and health care facilities. When this map is viewed full-size, you can choose to view additional layers from the drop-down Layers menu.
The most active seismic fault line in the eastern United States — the New Madrid Fault — is located about 40 miles from one end of the proposed pipeline (see Figure 2). The last major earthquakes along this fault line occurred in 1811 and 1812. Although the current Richter scale was not in use at that time, first quake in mid-December 1811 was estimated to have had a magnitude of between 7.2 and 8.2, and was followed by an aftershock of about 7.4. In January and February of 1812, there were additional earthquakes of this magnitude. Obviously, at this time in history, there was relatively sparse population in the area, and little infrastructure. Were such a quake to occur today, the outcomes would be catastrophic.
Figure 3: New Madrid Seismic Zone. Source: United States Geological Survey
According to a Wikipedia entry, “[i]n October 2009, a team composed of University of Illinois and Virginia Tech researchers headed by Amr S. Elnashai, funded by the Federal Emergency Management Agency, considered a scenario where all three segments of the New Madrid fault ruptured simultaneously with a total earthquake magnitude of 7.7. The report found that there would be significant damage in the eight states studied – Alabama, Arkansas, Illinois, Indiana, Kentucky, Mississippi, Missouri, and Tennessee – with the probability of additional damage in states farther from the New Madrid Seismic Zone. Tennessee, Arkansas, and Missouri would be most severely impacted, and the cities of Memphis, Tennessee, and St. Louis, Missouri, would be severely damaged. The report estimated 86,000 casualties, including 3,500 fatalities, 715,000 damaged buildings, and 7.2 million people displaced, with two million of those seeking shelter, primarily due to the lack of utility services. Direct economic losses, according to the report, would be at least $300 billion.” Source: University of Illinois report]
Another article on the New Madrid fault added that “….the US Geological Survey and the University of Memphis Center for Earthquake Research estimate there’s a 7 to 10 percent chance of a major quake — one with a magnitude between 7.5 and 8.0 — occurring in the region in the next 50 years….’ The scope is about as big as you could possibly have,’ said Jonathon Monken, director of the Illinois Emergency Management Agency and chairman of the Central U.S. Earthquake Consortium… ‘Putting it in a purely financial context, Hurricane Katrina was a $106 billion disaster. We estimate this would be a $300 billion disaster, the worst in the history of the United States.’”
Earthquake damage to pipelines can occur from movement on the fault itself, soil liquefaction, uplift, and landslides, resulting in potentially catastrophic situations. Engineering solutions to minimize or prevent seismic damage to pipelines do exist. These solutions must be part of the overall pipeline design, however. For example, the Trans-Alaska oil pipeline was constructed with considerations for earthquake impacts in mind. For more information, read about the solution that was implemented there.
This map shows the New Madrid seismic zone in the context of the proposed Byhalia Connection Pipeline. When this map is viewed full-size, you can choose to view additional layers from the drop-down Layers menu.
View Full Screen | Updated March 2021
As eloquently reported in a series of articles in mlk50.com, the siting of the Byhalia Connection Pipeline is not only an issue environmental tied with the natural environment. This is very much an issue of environmental justice, as well. Many of the census blocks along the proposed, preferred route of the pipeline, are 99% Black. Boxtown, a community in southwest Memphis is one of places, and already has a long history of impacts by environmental contamination from the dozens of industries that operate there. Toxic waste from coal power plants includes heavy metals and radioactive materials.
The pipeline route from Memphis to its terminus in Mississippi takes a circuitous route, avoiding wealthier parts of the city and its suburbs, but goes directly through low-income areas, some of which are inhabited by a nearly 100% Black population.
FracTracker looked at US Census data along the pipeline route, and calculated a half-mile (minimum recommended) and two-mile buffer zone from the pipeline right-of-way to consider populations that might be impacted in the case of an accident.
Explore the the demographics along the proposed Byhalia Connection Pipeline route. When this map is viewed full-size, you can choose to view additional layers from the drop-down Layers menu, such as the non-white population ration along the proposed pipeline route.
View Full Screen | Updated March 2021
There are 15,000 people living in the immediate evacuation zone of a half mile from the pipeline. In some parts of South Memphis, within this half-mile evacuation zone, population density is above 4,000 people per square mile, and the Black population approaches 100%. Within a two mile distance, the number climbs to over 76,000. Depending on the direction of the wind, a crude oil-induced fire could spew dangerous levels of volatile organic compounds through the air towards these populations. The disproportional risks to minority and low-income populations make the location of this pipeline — undeniably — an issue of environmental justice.
| Demographic | Within ½ mile of Byhalia Connection Pipeline | Within 2 miles of Byhalia Connection Pipeline |
| Total population | 15,041 | 76,016 |
| Non-white population | 7204 (48%, although some parts of South Memphis are 99+%) | 27,548 (36%, although some parts of South Memphis are 99+%) |
| Low income population | 4272 (28%, although some parts of South Memphis are 90+%) | 43,486(57%, although some parts of South Memphis are 90+%) |
Table 1: Population demographics along the proposed Byhalia Connection pipeline corridor.
Key civic facilities are also located within the half-mile evacuation zone of the pipeline. Were a disaster to occur, would the schools, childcare centers and medical facilities be able to successfully usher their residents and students to safety? Would they have had regular safety trainings to prepare them for this possibility?
| Facility | Within ½ mile of pipeline | Within 2 miles of pipeline |
| Child care | 4 (one within 800 feet) | 30 |
| Public school | 2 (one within 800 feet) | 26 |
| EMS | 2 | 11 |
| Hospital | 0 | 1 |
| Private school | 0 | 1 |
Table 2: Facilities along the proposed Byhalia Connection pipeline corridor (also shown in the interactive map here).
Former Vice President Al Gore voiced his opposition to the Byhalia Connection and put Memphis elected officials on notice during a rally against the pipeline on March 14, 2021.
Source: Article in commercialappeal.com
“Why is it that 64% of the polluting facilities of these pipeline communities are located in or adjacent to Black communities? Why is it that the cancer rate in SW Memphis four times higher than the national average? Why is it that Black children suffer from asthma three times more than white children? Why is it that the death rate from asthma for Black children is ten times higher than for white children?” – Former Vice President Al Gore
And two days later, on March 16th, the Memphis City Council unanimously approved a resolution that opposes the Byhalia Connection Pipeline project.
Approximately 300 property owners adjacent to the pipeline have already accepted monetary compensation to abandon their homes or sell property easements to make way for the pipeline. If a landowner refuses payment offered by the pipeline company for a property easement — often far under market value — the company can take the landowner to court, and seize the property (or portion of it) with no requirement of compensation. Although a majority of property owners accepted the terms of the easements drawn up by Byhalia’s developers, at least 14 did not. When numerous owners refused, nine properties were targeted for taking by eminent domain, and sued by the pipeline company. The Southern Environmental Law Center (SELC) is defending many of these property owners, claiming that the seizures — regardless of whether they are temporary or permanent — do not comply with the criteria of meeting a public good. The oil being transported in the proposed pipeline is entirely bound for export.
“The pipeline company is not created by, affiliated with or owned by the government, and the general public would have no access to the proposed crude oil pipeline… So, there is no ‘public use’ justifying the use of the condemnation power as required by Tennessee law,” said one of SELC’s attorneys. In addition, SELC has cited the illegality of the pipeline route because it runs through the municipal wellfield, and therefore violates permits issued by the Army Corps of Engineers. The Army Corp was still considering this request, as of mid-January 2021.
Furthermore, the eminent domain targeting of land owned by Black Americans in the south is a pointed question of racial justice. Historically, black and brown people throughout the United States have had far lower levels of home ownership than whites. This gap is most pronounced in lower income areas.
Figure 5: Homeownership rate in the US, by household income (2017). Source: The Urban Institute.
“The 71.9 percent white homeownership rate in 2017 represented a 0.7 percentage point decline since 2010, and the 41.8 percent black homeownership rate represented a 2.7 percentage point decline during that same period. The 30.1 percentage point gap is wider than it was when race-based discrimination against homebuyers was legal.” The Urban Institute
Figure 6: Homeownership in the US by race or ethnicity. Source: The Urban Institute.
Losing land to eminent domain represents a loss of control for a landowner — white or black. But the loss is especially unjust when a property may have been so hard won, and sometimes the result of a multi-generational lineage of ownership, as is the case for many properties along the Byhalia right-of-way.
FracTracker has created an interactive map showing the locations of crude oil spills across the United States between 2010 and 2021, using the most up-to-date information from PHMSA, the Pipeline and Hazardous Materials Safety Administration.
View Full Screen | Updated March, 2021
You can also read more about a wider diversity of hazardous liquid materials accidents analyzed by FracTracker in an article from February 2020, entitled “Pipelines Continue to Catch Fire and Explode”.
A 2020 research paper states, “Modeling and analysis of a catastrophic oil spill and vapor cloud explosion in a confined space upon oil pipeline leaking” provides a stark example of the damage done from the leak and explosion of a crude oil pipeline operating at a third of the pressure proposed for Byhalia.
“It is obvious that the explosion caused big damages to the adjacent buildings, roads, and public structures. Moreover, the explosion, combustion, and the shock wave caused injuries and deaths of workers, pedestrians, and residents. The total affected zone spread nearly 5 km [3.1 miles].”
Note: The oil pipeline shown in Shengzhu, Xu, et al.’s paper in was 28 inches in diameter, and operating at a pressure of between 400 and 660 psi. A vapor cloud from the spill into a municipal drainage area caused this explosion, which killed 62 people and injured 136 in November 2013. The 24-inch, proposed Byhalia pipeline would operate at triple the pressure of the pipeline shown in these photos of its explosion.
(a) bird’s eye view of the location of the explosion point, (b) scene of the oil spill point after explosion, (c) scene of the nearby street, (d) scene of the drainage of the adjacent plant.
Figure 7: Scene of an oil pipeline explosion site in China. (a) bird’s eye view of the location of the explosion point, (b) scene of the oil spill point after explosion, (c) scene of the nearby street, (d) scene of the drainage of the adjacent plant. Image from Shengzhu, Xu, et al.
Health Canada published the information document Guidance on the Management of Crude Oil Incidents (2018), which details important information about how to deal with crude oil spills. Here are checklists on whether to evacuate or shelter in place and information on determining protective zone distances, particularly downwind of a spill from the 2016 Emergency Response Guidebook.
In case of a large spill: Consider initial downwind evacuation for at least 300 meters (1000 feet).
In case of a fire: If tank, rail car or tank truck is involved in a fire, ISOLATE for 800 meters (1/2 mile) in all directions; also, consider initial evacuation for 800 meters (1/2 mile) in all directions. Source: Petroleum crude oil hazards
The Byhalia Connection Pipeline is receiving considerable scrutiny, both from media sources like the Memphis Daily News and MLK50, as well as advocacy groups including Sierra Club’s Tennessee Chapter, the Southern Environmental Law Center, Memphis Community Against the Pipeline, and Protect Our Aquifer. In a move considered egregious by a vast swath of stakeholders, in early February 2021, the US Army Corps of Engineers approved a Nationwide 12 permit to fast-track the Byhalia project, effectively cutting out public comment from the process, and lightening the environmental review requirements. Because the project touches vulnerabilities in the intersection of environment, economics, health, safety, and social justice, this discussion is not likely to easily recede into the background, despite placating claims by the companies that are poised to profit.
Protests are ongoing, and just recently, on February 22, 2021, United States Congressional Representative Steve Cohen sent a direct appeal to President Biden to revoke a key permit for Byhalia, directly citing the burden the pipeline would impose on long-suffering Black neighborhoods in South Memphis. Simultaneously, the Public Works Department of Memphis is considering a resolution condemning the pipeline, and asking the Memphis Light, Gas, and Water Division to oppose the project.
This story will undoubtedly continue to evolve in the upcoming months.
Regardless of where a pipeline is sited, there are inevitably risks to the environment, and to human communities living nearby. The proposed Byhalia Connection pipeline project is situated in a particularly problematic intersection where environmental justice, hydrology, geology, and risks to human and environmental health intersect. Without taking all of these factors into consideration, a potentially catastrophic cascade of impacts may ensue. Engagement and resistance to the project by the residents in the area, as well as support by advocacy groups, will hopefully result in comprehensive consideration of all the risks. Time will tell whether the project is modified, or simply defeated.
MLK50.com maintains an archive of excellent reading materials on this controversial project that can be found here.
By Ted Auch, PhD, Great Lakes Program Coordinator and Shannon Smith, Manager of Communications & Development
The oil and gas industry continues to use rhetoric focusing on national security and energy independence in order to advocate for legislation to criminalize climate activists. Backlash against protestors and environmental stewards has only increased since the onset of COVID-19, suggesting that industry proponents are exploiting this public health crisis to further their own dangerous and controversial policies.[1]
Industry actors contributing to the wave of anti-protest bills include American Petroleum Institute (API), IHS Markit, The American Fuel & Petrochemical Manufacturers (AFPM), and most effectively, the American Legislative Exchange Council (ALEC), by way of its primary financial backer, Koch Industries (Fang, 2014, Shelor, 2017).
ALEC is the source of the model legislation “Critical Infrastructure Protection Act” of 2017, intended to make it a felony to “impede,” “inhibit,” “impair,” or “interrupt” critical infrastructure operation and/or construction. Close approximations – if not exact replicas – of this legislative template have been passed in 11 hydrocarbon rich and/or pathway states, and 8 more are being debated in 4 additional states.
The “critical infrastructure” designation in ALEC’s “Critical Infrastructure Protection Act” is extremely broad, including over 70 pieces of infrastructure, from wastewater treatment and well pads, to ports and pipelines. However, along with the 259 Foreign Trade Zones (FTZ) (Figures 1 and 4) supervised by US Customs and Border Protection (CBP), security is of such importance because over 50% of this infrastructure is related to oil and gas. According to our analysis, there are more than 8,000 unique pieces of infrastructure that fall under this designation, with over 10% in the Marcellus/Utica states of Ohio, West Virginia, and Pennsylvania. See Figure 1 for the number of FTZ per state.
Regarding FTZ, the US Department of Homeland Security doesn’t attempt to hide their genuine nature, boldly proclaiming them “… the United States’ version of what are known internationally as free-trade zones … to serve adequately ‘the public interest’.” If there remains any confusion as to who these zones are geared toward, the US Department of Commerce’s International Administration (ITA) makes the link between FTZ and the fossil fuel industry explicit in its FTZ FAQ page, stating “The largest industry currently using zone procedures is the petroleum refining industry.” (Figure 2)
Foreign-Trade Zone (FTZ) Board of Actions in Zone 87 in Lake Charles, Louisiana
Foreign-Trade Zone (FTZ) Board of Actions in Zones 115-117 in and around Port Arthur, Texas
Foreign-Trade Zone (FTZ) Board of Actions in Zone 122 in Corpus Christi, Texas
Much of the oil, gas, and petrochemical industries’ efforts stem from the mass resistance to the Dakota Access Pipeline (DAPL). Native American tribes and environmental groups spent months protesting the environmentally risky $3.78 billion dollar project, which began production in June 2017, after Donald Trump signed an executive order to expedite construction during his first week in office. The Standing Rock Sioux tribe also sued the US government in a campaign effort to protect their tribal lands. The world watched as Energy Transfer Partners (ETP), the company building the pipeline, destroyed Native artifacts and sacred sites, and as police deployed tear gas and sprayed protesters with water in temperatures below freezing.
ETP’s bottom line and reputation were damaged during the fight against DAPL. Besides increasingly militarized law enforcement, the oil and gas industry has retaliated by criminalizing similar types of protests against fossil fuel infrastructure. However, the tireless work of Native Americans and environmental advocates has resulted in a recent victory in March 2020, when a federal judge ordered a halt to the pipeline’s production and an extensive new environmental review of DAPL.
Just days ago, on July 6, 2020, a federal judge ruled that DAPL must shut down until further environmental review can assess potential hazards to the landscape and water quality of the Tribe’s water source. This is certainly a victory for the Standing Rock Sioux Tribe and other environmental defenders, but the decision is subject to appeal.
Since the DAPL conflict began, the industry has been hastily coordinating state-level legislation in anticipation of resistance to other notable national gas transmission pipelines, more locally concerning projects like Class II Oil and Gas Waste Injection Wells, and miles of gas gathering pipelines that transport increasing streams of waste – as well as oil and gas – to coastal processing sites.
The following “critical infrastructure” bills have already been enacted:
| STATE | BILL | TITLE | DATE PASSED | |
| West Virginia | HB 4615 | NEW PENALTIES FOR PROTESTS NEAR GAS AND OIL PIPELINES | 3/25/20 | |
| South Dakota | SB 151 | NEW PENALTIES FOR PROTESTS NEAR PIPELINES AND OTHER INFRASTRUCTURE | 3/18/20 | |
| Kentucky | HB 44 | NEW PENALTIES FOR PROTESTS NEAR PIPELINES AND OTHER INFRASTRUCTURE | 3/16/20 | |
| Wisconsin | AB 426 | NEW PENALTIES FOR PROTESTS NEAR GAS AND OIL PIPELINES | 11/21/19 | |
| Missouri | HB 355 | NEW PENALTIES FOR PROTESTS NEAR GAS AND OIL PIPELINES | 7/11/19 | |
| Texas | HB 3557 | NEW CRIMINAL AND CIVIL PENALTIES FOR PROTESTS AROUND CRITICAL INFRASTRUCTURE | 6/14/19 | |
| Tennessee | SB 264 | NEW PENALTIES FOR PROTESTS NEAR GAS AND OIL PIPELINES | 5/10/19 | |
| Indiana | SB 471 | NEW PENALTIES FOR PROTESTS NEAR CRITICAL INFRASTRUCTURE | 5/6/19 | |
| North Dakota | HB 2044 | HEIGHTENED PENALTIES FOR PROTESTS NEAR CRITICAL INFRASTRUCTURE | 4/10/19 | |
| Louisiana | HB 727 | HEIGHTENED PENALTIES FOR PROTESTING NEAR A PIPELINE | 5/30/18 | |
| Oklahoma | HB 1123 | NEW PENALTIES FOR PROTESTS NEAR CRITICAL INFRASTRUCTURE | 5/3/17 | |
There are an additional eight bills proposed and under consideration in these six states:
| STATE | PENDING | TITLE | DATE PROPOSED |
| Louisiana | HB 197 | NEW PENALTIES FOR PROTESTS NEAR CRITICAL INFRASTRUCTURE | 2/24/20 |
| Minnesota | HF 3668 | NEW PENALTIES FOR PROTESTS NEAR GAS AND OIL PIPELINES | 2/24/20 |
| Mississippi | HB 1243 | NEW PENALTIES FOR PROTESTS NEAR CRITICAL INFRASTRUCTURE | 2/19/20 |
| Alabama | SB 45 | NEW PENALTIES FOR PROTESTS NEAR GAS AND OIL PIPELINES | 2/4/20 |
| Minnesota | HF 2966 | NEW PENALTIES FOR PROTESTS NEAR OIL AND GAS PIPELINES | 1/31/20 |
| Minnesota | SF 2011 | NEW PENALTIES FOR PROTESTS NEAR GAS AND OIL PIPELINES | 3/4/19 |
| Ohio | SB 33 | NEW PENALTIES FOR PROTESTS NEAR CRITICAL INFRASTRUCTURE | 2/12/19 |
| Illinois | HB 1633 | NEW PENALTIES FOR PROTESTS NEAR CRITICAL INFRASTRUCTURE | 1/31/19 |
Activists and organizations like the American Civil Liberties Union (ACLU) are framing their opposition to such legislation as an attempt to stave off the worst Orwellian instincts of our elected officials, whether they are in Columbus or Mar-a-Lago. On the other hand, industry and prosecutors are framing these protests as terroristic acts that threaten national security, which is why sentencing comes with a felony conviction and up to ten years in prison. The view of the FBI’s deputy assistant director and top official in charge of domestic terrorism John Lewis is that, “In recent years, the Animal Liberation Front and the Earth Liberation Front have become the most active, criminal extremist elements in the United States … the FBI’s investigation of animal rights extremists and ecoterrorism matters is our highest domestic terrorism investigative priority.”
It shocked many when last week, two protesters in the petrochemical-laden “Cancer Alley” region of Louisiana were arrested and charged under the state’s felony “terrorist” law. Their crime? Placing boxes of nurdles – plastic pellets that are the building blocks of many single-use plastic products – on the doorsteps of fossil fuel lobbyists’ homes. To make matters more ridiculous, the nurdles were illegally dumped by the petrochemical company Formosa Plastics.[2] This is outrageous indeed, but is the sort of legally-sanctioned oppression that fossil fuel industry lobbyists have been successfully advocating for years.
American Fuel & Petrochemical Manufacturers (AFPM) stated in a letter of support for ALEC’s legislative efforts:
“In recent years, there has been a growing and disturbing trend of individuals and organizations attempting to disrupt the operation of critical infrastructure in the energy, manufacturing, telecommunications, and transportation industries. Energy infrastructure is often targeted by environmental activists to raise awareness of climate change and other perceived environmental challenges. These activities, however, expose individuals, communities, and the environment to unacceptable levels of risk, and can cause millions of dollars in damage … As the private sector continues to expand and maintain the infrastructure necessary to safely and reliably deliver energy and other services to hundreds of millions of Americans, policymakers should continue to consider how they can help discourage acts of sabotage … Finally, it will also hold organizations both criminally and vicariously liable for conspiring with individuals who willfully trespass or damage critical infrastructure sites.”
Those organizations deemed ‘criminally and vicariously liable’ would in some states face fines an order of magnitude greater than the actual individual, which would cripple margin-thin environmental groups around the country, and could amount to $100,000 to $1,000,000. The AFPM’s senior vice president for federal and regulatory affairs Derrick Morgan referred to these vicarious organizations as “inspiring … organizations who have ill intent, want to encourage folks to damage property and endanger lives …”
Oklahoma Oil & Gas Association (OKOGA) wrote in a fear-mongering letter to Oklahoma Governor Mary Fallin that such legislation was necessary to “protect all Oklahomans from risk of losing efficient and affordable access to critical services needed to power our daily lives.”
One of the most disturbing aspects of this legislation is that it could, according to the testimony and additional concerns of ACLU of Ohio’s Chief Lobbyist Gary Daniels, equate “‘impeding’ and ‘inhibiting’ the ‘operations’ of a critical infrastructure site” with acts as innocuous as Letters to the Editor, labor strikes or protests, attending and submitting testimony at hearings, or simply voicing your concern or objections to the validity of industry claims and its proposals with emails, faxes, phone calls, or a peaceful protest outside critical infrastructure that raises the concern of site security. Mr. Daniels noted in his additional written testimony that the latter, “may prove inconvenient to the site’s staff, under SB 250 they would be an F3 [Third Degree Felony], and that is without someone even stepping foot on or near the property, as physical presence is not required to be guilty of criminal mischief, as found in/defined in Sec. 2907.07(A)(7) of the bill.”
Figure 3. A rally held by the Louisiana-based nonprofit RISE St. James.
This connection, when enshrined into law, will have a chilling effect on freedom of speech and assembly, and will stop protests or thoughtful lines of questioning before they even start. As the Ohio Valley Environmental Coalition (OVEC) put it in their request for residents to ask the governor to veto the now-enacted HB 4615, such a bill is unnecessary, duplicative, deceitful, un-American, unconstitutional, and “will further crowd our jails and prisons.”
To combat such industry-friendly legislation that erodes local government control in Ohio, lawmakers like State Senator Nikki Antonio are introducing resolutions like SR 221, which would, “abolish corporate personhood and money-as-speech doctrine” made law by the Supreme Court of the United States’ rulings in Citizens United v. FEC and Buckley v. Valeo. After all, the overarching impact of ALEC’s efforts and those described below furthers privatized, short-term profit and socialized, long-term costs, and amplifies the incredibly corrosive Citizen’s United decision a little over a decade ago.
Simultaneously, there is an effort to criminalize protest activities through “riot boosting acts,” increased civil liability and decreased police liability, trespassing penalties, and new sanctions for protestors who conceal their identities (by wearing a face mask, for example).
The following bills have already been enacted:
| STATE | BILL | TITLE | DATE PASSED |
| South Dakota | SB 189 | EXPANDED CIVIL LIABILITY FOR PROTESTERS AND PROTEST FUNDERS | 3/27/19 |
| West Virginia | HB 4618 | ELIMINATING POLICE LIABILITY FOR DEATHS WHILE DISPERSING RIOTS AND UNLAWFUL ASSEMBLIES | 3/10/18 |
| North Dakota | HB 1426 | HEIGHTENED PENALTIES FOR RIOT OFFENCES | 2/23/17 |
| North Dakota | HB 1293 | EXPANDED SCOPE OF CRIMINAL TRESPASS | 2/23/17 |
| North Dakota | HB 1304 | NEW PENALTIES FOR PROTESTERS WHO CONCEAL THEIR IDENTITY | 2/23/17 |
In addition, the following bills have been proposed and are under consideration:
| STATE | PENDING | TITLE | DATE PROPOSED |
| Rhode Island | H 7543 | NEW PENALTIES FOR PROTESTERS WHO CONCEAL THEIR IDENTITY | 2/12/20 |
| Oregon | HB 4126 | HARSH PENALTIES FOR PROTESTERS WHO CONCEAL THEIR IDENTITY | 1/28/20 |
| Tennessee | SB 1750 | NEW PENALTIES FOR PROTESTERS WHO CONCEAL THEIR IDENTITY | 1/21/20 |
| Ohio | HB 362 | NEW PENALTIES FOR PROTESTERS WHO CONCEAL THEIR IDENTITY | 10/8/19 |
| Pennsylvania | SB 887 | NEW PENALTIES FOR PROTESTS NEAR “CRITICAL INFRASTRUCTURE” | 10/7/19 |
| Massachusetts | HB 1588 | PROHIBITION ON MASKED DEMONSTRATIONS | 1/17/19 |
All the while, the Bundy clan of Utah pillage – and at times – hold our public lands hostage, and white male Michiganders enter the state capital in Lansing armed for Armageddon, because they feel that COVID-19 is a hoax. We imagine that it isn’t these types of folks that West Virginia State Representatives John Shott and Roger Hanshaw had in mind when they wrote and eventually successfully passed HB 4618, which eliminated police liability for deaths while dispersing riots and unlawful assemblies.
Contrarily, South Dakota’s SB 189, or “Riot Boosting Act,” was blocked by the likes of US District Judge Lawrence L. Piersol, who wrote:
“Imagine that if these riot boosting statutes were applied to the protests that took place in Birmingham, Alabama, what might be the result? … Dr. King and the Southern Christian Leadership Conference could have been liable under an identical riot boosting law.”
FracTracker collaborated with Crude Accountability on a report documenting increasing reprisals against environmental activists in the US and Eurasia. Read the Report.
Despite Judge Piersol’s ruling, South Dakota (SB 151) joined Kentucky (HB 44) and West Virginia (HB 4615) in passing some form of ALEC’s bill since the COVID-19 epidemic took hold of the US. This is classic disaster capitalism. As former Barack Obama Chief of Staff Rahm Emanuel once said, “You never want a serious crisis to go to waste, and what I mean by that is it’s an opportunity to do things you think you could not do before.”
Figure 4. Photo of US Treasury Department signage outlining the warning associated with BP’s Whiting, IN, oil refinery designated a Foreign Trade Zone (FTZ). Photo by Ted Auch July 15th, 2015
In all fairness to Mr. Emanuel, he was referring to the Obama administration’s support for the post-2008 bipartisan Wall Street bailout. However, it is critical that we acknowledge the push for critical infrastructure legislation has been most assuredly bipartisan, with Democratic Governors in Kentucky, Louisiana, and Wisconsin signing into law their versions on March 16th of this year, in May of 2018, and in November of 2019, respectively.
According to the International Center for Not-for-Profit Law, 11 states have passed some version of ALEC’s bill, with the first uncoincidentally being a series of three bills signed in February of 2017 by North Dakota Governor Burgum, targeting “Heightened Penalties for Riot Offences” (HB 1426), “Expanded Scope of Criminal Trespass” (HB 1293), and “New Penalties for Protestors Who Conceal Their Identity” (HB 1304), with at least one member of ALEC’s stable of elected officials, Rep. Kim Koppelman, proudly displaying his affiliation in his biography on the North Dakota Legislative Branch’s website. Mr. Koppelman, along with Rep. Todd Porter out of Mandan, also cosponsored two of these bills.
In Columbus, Ohio, there are several pieces of legislation being pushed in concert with ALEC-led efforts. These include the recently submitted HB 362, that would “create the crime of masked intimidation.” Phil Plummer and George F. Lang sponsor the bill, with the latter being the same official who introduced HB 625, a decidedly anti-local control bill that would preempt communities from banning plastic bags. Most of the general public and some of the country’s largest supermarket chains have identified plastic bag bans as a logical next step as they wrestle with their role in the now universally understood crimes plastics have foisted on our oceans and shores. As Cleveland Scene’s Sam Allard wrote, “bill mills” and their willing collaborators in states like Ohio cause such geographies to march “boldly, with sigils flying in the opposite direction” of progress, and a more renewable and diversified energy future.
With respect to Plummer and Lang’s HB 362, two things must be pointed out:
1) It is eerily similar to North Dakota’s HB 1304 that created new penalties for protestors who conceal their identity, and
2) The North Dakota bill was conveniently signed into law by Governor Burgum on February 23rd, 2017, who had set the day prior as the “deadline for the remaining [DAPL] protesters to leave an encampment on federal land near the area of the pipeline company’s construction site.”
So, when elected officials as far away as Columbus copy and paste legislation passed in the aftermath of the DAPL resistance efforts, it is clear the message they are conveying, and the audience(s) they are trying to intimidate.
Plummer and Lang’s HB 362 would add a section to the state’s “Offenses Against the Public Peace,” Chapter 2917, that would in part read:
No person shall wear a mask or disguise in order to purposely do any of the following:
(A) Obstruct the execution of the law;
(B) Intimidate, hinder, or interrupt a person in the performance of the person’s legal duty; or
(C) Prevent a person from exercising the rights granted to them by the Constitution or the laws of this state.
Whoever violates this proposed section is guilty of masked intimidation. Masked intimidation is a first degree misdemeanor. It was critical for the DAPL protestors to protect their faces during tear gas and pepper spray barrages, from county sheriffs and private security contractors alike.
At the present moment, masks are one of the few things standing between COVID-19 and even more death. Given these realities, it is stunning that our elected officials have the time and/or interest in pushing bills such as HB 362 under the thin veil of law and order.
But judging by what one West Virginia resident and former oil and gas industry draftsman,[3] wrote to us recently, elected officials do not really have much to lose, given how little most people think of them:
“Honestly, it doesn’t seem to matter what we do. The only success most of us have had is in possibly slowing the process down and adding to the cost that the companies incur. But then again, the increase in costs probably just gets passed down to the consumers. One of the biggest drawbacks in my County is that most, if not all, of the elected officials are pro drilling. Many of them have profited from it.”
The oil, gas, and petrochemical industries are revealing their weakness by scrambling to pass repressive legislation to counteract activists. But social movements around the world are determined to address interrelated social and environmental issues before climate chaos renders our planet unlivable, particularly for those at the bottom of the socioeconomic ladder. We hope that by shining a light on these bills, more people will become outraged enough to join the fight against antidemocratic legislation.
This is Part I of a two-part series on concerning legislation related to the oil, gas, and petrochemical industries. Part II focuses on bills that would weaken environmental regulations in Ohio, Michigan, and South Dakota.
By Ted Auch, PhD, Great Lakes Program Coordinator and Shannon Smith, Manager of Communications & Development
[1] See Naomi Klein’s concept of the Shock Doctrine for similar trends.
[2] The community-based environmental organization RISE St. James has been working tirelessly to prevent Formosa Plastics from building one of the largest petrochemical complexes in the US in their Parish. Sharon Lavigne is a leading member of RISE St. James, and is an honored recipient of the 2019 Community Sentinel Award for Environmental Stewardship. Read more on Sharon’s work with RISE St. James here.
[3] This individual lives in Central West Virginia, and formerly monitored Oil & Gas company assets in primarily WV, PA, NY, VA, MD & OH, as well as the Gulf Coast. Towards the end of this individual’s career, they provided mapping support for the smart pigging program, call before you dig, and the pipeline integrity program.
FracTracker Alliance has released a new national map, filled with energy and petrochemical data. Explore the map, continue reading to learn more, and see how your state measures up!
This map has been updated since this blog post was originally published, and therefore statistics and figures below may no longer correspond with the map
The items on the map (followed by facility count in parenthesis) include:
For oil and gas wells, view FracTracker’s state maps.
This map is by no means exhaustive, but is exhausting. It takes a lot of infrastructure to meet the energy demands from industries, transportation, residents, and businesses – and the vast majority of these facilities are powered by fossil fuels. What can we learn about the state of our national energy ecosystem from visualizing this infrastructure? And with increasing urgency to decarbonize within the next one to three decades, how close are we to completely reengineering the way we make energy?
The “power plant” legend item on this map contains facilities with an electric generating capacity of at least one megawatt, and includes independent power producers, electric utilities, commercial plants, and industrial plants. What does this data reveal?
Power plants by energy source. Data from EIA.
In terms of the raw number of power plants – solar plants tops the list, with 2,916 facilities, followed by natural gas at 1,747.
In terms of megawatts of electricity generated, the picture is much different – with natural gas supplying the highest percentage of electricity (44%), much more than the second place source, which is coal at 21%, and far more than solar, which generates only 3% (Figure 1).
Figure 1. Electricity generation by source in the United States, 2019. Data from EIA.
This difference speaks to the decentralized nature of the solar industry, with more facilities producing less energy. At a glance, this may seem less efficient and more costly than the natural gas alternative, which has fewer plants producing more energy. But in reality, each of these natural gas plants depend on thousands of fracked wells – and they’re anything but efficient.
The cost per megawatt hour of electricity for a renewable energy power plants is now cheaper than that of fracked gas power plants. A report by the Rocky Mountain Institute, found “even as clean energy costs continue to fall, utilities and other investors have announced plans for over $70 billion in new gas-fired power plant construction through 2025. RMI research finds that 90% of this proposed capacity is more costly than equivalent [clean energy portfolios, which consist of wind, solar, and energy storage technologies] and, if those plants are built anyway, they would be uneconomic to continue operating in 2035.”
The economics side with renewables – but with solar, wind, geothermal comprising only 12% of the energy pie, and hydropower at 7%, do renewables have the capacity to meet the nation’s energy needs? Yes! Even the Energy Information Administration, a notorious skeptic of renewable energy’s potential, forecasted renewables would beat out natural gas in terms of electricity generation by 2050 in their 2020 Annual Energy Outlook.
This prediction doesn’t take into account any future legislation limiting fossil fuel infrastructure. A ban on fracking or policies under a Green New Deal could push renewables into the lead much sooner than 2050.
In a void of national leadership on the transition to cleaner energy, a few states have bolstered their renewable portfolio.
Figure 2. Electricity generation state-wide by source, 2019. Data from EIA.
One final factor to consider – the pie pieces on these state charts aren’t weighted equally, with some states’ capacity to generate electricity far greater than others. The top five electricity producers are Texas, California, Florida, Pennsylvania, and Illinois.
In 2018, approximately 28% of total U.S. energy consumption was for transportation. To understand the scale of infrastructure that serves this sector, it’s helpful to click on the petroleum refineries, crude oil rail terminals, and crude oil pipelines on the map.
Transportation Fuel Infrastructure. Data from EIA.
The majority of gasoline we use in our cars in the US is produced domestically. Crude oil from wells goes to refineries to be processed into products like diesel fuel and gasoline. Gasoline is taken by pipelines, tanker, rail, or barge to storage terminals (add the “petroleum product terminal” and “petroleum product pipelines” legend items), and then by truck to be further processed and delivered to gas stations.
The International Energy Agency predicts that demand for crude oil will reach a peak in 2030 due to a rise in electric vehicles, including busses. Over 75% of the gasoline and diesel displacement by electric vehicles globally has come from electric buses.
China leads the world in this movement. In 2018, just over half of the world’s electric vehicles sales occurred in China. Analysts predict that the country’s oil demand will peak in the next five years thanks to battery-powered vehicles and high-speed rail.
In the United States, the percentage of electric vehicles on the road is small but growing quickly. Tax credits and incentives will be important for encouraging this transition. Almost half of the country’s electric vehicle sales are in California, where incentives are added to the federal tax credit. California also has a “Zero Emission Vehicle” program, requiring electric vehicles to comprise a certain percentage of sales.
We can’t ignore where electric vehicles are sourcing their power – and for that we must go back up to the electricity generation section. If you’re charging your car in a state powered mainly by fossil fuels (as many are), then the electricity is still tied to fossil fuels.
Many of the oil and gas infrastructure on the map doesn’t go towards energy at all, but rather aids in manufacturing petrochemicals – the basis of products like plastic, fertilizer, solvents, detergents, and resins.
This industry is largely concentrated in Texas and Louisiana but rapidly expanding in Pennsylvania, Ohio, and West Virginia.
On this map, key petrochemical facilities include natural gas plants, chemical plants, ethane crackers, and natural gas liquid pipelines.
Petrochemical infrastructure. Data from EIA.
Natural gas processing plants separate components of the natural gas stream to extract natural gas liquids like ethane and propane – which are transported through the natural gas liquid pipelines. These natural gas liquids are key building blocks of the petrochemical industry.
Ethane crackers process natural gas liquids into polyethylene – the most common type of plastic.
The chemical plants on this map include petrochemical production plants and ammonia manufacturing. Ammonia, which is used in fertilizer production, is one of the top synthetic chemicals produced in the world, and most of it comes from steam reforming natural gas.
As we discuss ways to decarbonize the country, petrochemicals must be a major focus of our efforts. That’s because petrochemicals are expected to account for over a third of global oil demand growth by 2030 and nearly half of demand growth by 2050 – thanks largely to an increase in plastic production. The International Energy Agency calls petrochemicals a “blind spot” in the global energy debate.
Petrochemical development off the coast of Texas, November 2019. Photo by Ted Auch, aerial support provided by LightHawk.
Investing in plastic manufacturing is the fossil fuel industry’s strategy to remain relevant in a renewable energy world. As such, we can’t break up with fossil fuels without also giving up our reliance on plastic. Legislation like the Break Free From Plastic Pollution Act get to the heart of this issue, by pausing construction of new ethane crackers, ensuring the power of local governments to enact plastic bans, and phasing out certain single-use products.
Mapped out, this web of fossil fuel infrastructure seems like a permanent grid locking us into a carbon-intensive future. But even more overwhelming than the ubiquity of fossil fuels in the US is how quickly this infrastructure has all been built. Everything on this map was constructed since Industrial Revolution, and the vast majority in the last century (Figure 3) – an inch on the mile-long timeline of human civilization.
Figure 3. Global Fossil Fuel Consumption. Data from Vaclav Smil (2017)
In fact, over half of the carbon from burning fossil fuels has been released in the last 30 years. As David Wallace Wells writes in The Uninhabitable Earth, “we have done as much damage to the fate of the planet and its ability to sustain human life and civilization since Al Gore published his first book on climate than in all the centuries—all the millennia—that came before.”
What will this map look like in the next 30 years?
A recent report on the global economics of the oil industry states, “To phase out petroleum products (and fossil fuels in general), the entire global industrial ecosystem will need to be reengineered, retooled and fundamentally rebuilt…This will be perhaps the greatest industrial challenge the world has ever faced historically.”
Is it possible to build a decentralized energy grid, generated by a diverse array of renewable, local, natural resources and backed up by battery power? Could all communities have the opportunity to control their energy through member-owned cooperatives instead of profit-thirsty corporations? Could microgrids improve the resiliency of our system in the face of increasingly intense natural disasters and ensure power in remote regions? Could hydrogen provide power for energy-intensive industries like steel and iron production? Could high speed rail, electric vehicles, a robust public transportation network and bike-able cities negate the need for gasoline and diesel? Could traditional methods of farming reduce our dependency on oil and gas-based fertilizers? Could zero waste cities stop our reliance on single-use plastic?
Of course! Technology evolves at lightning speed. Thirty years ago we didn’t know what fracking was and we didn’t have smart phones. The greater challenge lies in breaking the fossil fuel industry’s hold on our political system and convincing our leaders that human health and the environment shouldn’t be externalized costs of economic growth.
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