Pipeline tells Black Memphis landowners: sell us the rights to your land or get sued

The only things Karmen Johnson-Tutwiler has left to remind her of her mother are a few photographs and just under a quarter acre of land covered in bramble and wildflowers that backs up to a railroad track. When her mother, Sharon Watson, died in 2010, she and her sister inherited it. “She always told me it was important to have a piece of property as your own,” Johnson-Tutwiler said.

While visiting as a child, Johnson-Tutwiler coasted on bikes down hilly roads alongside the property, passing a few modest houses and land where residents grew fruit and vegetables to feed their families. The land is on the edge of a neighborhood called Boxtown, a community built by formerly enslaved people and annexed by the city of Memphis during the 1960s and 1970s. Since then, residents of the neighborhood, which is 99% Black, had to organize to demand the city extend essential services to it, such as water lines, indoor plumbing and bus routes. Like other neighborhoods in south-west Memphis, Boxtown is surrounded by industrial facilities, including a Valero oil refinery.

Since February 2020, the Byhalia Pipeline, a joint venture of Valero and Plains All American Pipeline, has been trying to gain control of part of Johnson-Tutwiler’s land, which is along the route of the proposed 49-mile Byhalia Connection oil pipeline. The route would run through multiple majority-Black neighborhoods in south-west Memphis, and researchers and activists say a spill could threaten the city’s public water source: an aquifer the size of Lake Michigan.

Johnson-Tutwiler does not currently reside on the stretch of land the company wants – .08 of an acre temporarily and .11 of an acre permanently – but it would prevent her or other family members from ever building a house. “That was the only thing that I had that my mom left with us that we could pass down through the lines of the family,” she said.

The legal battle over the proposed pipeline has become a flashpoint in a national conversation about environmental justice and eminent domain, a right of the government to seize private property for public use, which is increasingly being used by oil and gas companies to take private land.

Johnson-Tutwiler and her sister are among at least 10 south-west Memphis families who have already lost or stand to lose some property rights to Byhalia Pipeline. The company has been trying to buy easements, or rights to pieces of property, from Shelby county landowners since 2020. If they refuse, the company has been taking them to court using eminent domain, a power embedded in the fifth amendment and conferred to states through the fourteenth amendment. The federal government and states have allowed energy companies, including oil and gas pipeline builders, to use it for more than 100 years; since fracking was commercialized in 2007, fossil fuel companies have used it more often to build projects including the Dakota Access and Keystone XL pipelines.

On 14 May, a circuit court judge will hear oral arguments from Byhalia Connection, and their opponents, to determine whether any crude oil pipeline developer, including Byhalia Pipeline, has the right to exercise the power of eminent domain under Tennessee law.

It will be the first decision of its kind to be made in a Tennessee court, said Scott Crosby, an attorney representing the landowners, and the outcome could set legal precedent. Legal scholars and activists argue the continued use of eminent domain for fossil fuel development – a power granted by federal law for natural gas pipelines that cross state lines but at the state level for oil pipelines and energy plants – is due for reform amid climate and racial justice crises.

Developers and the federal government have used eminent domain extensively to take land from Black communities, which contributes to Black land loss and the racial wealth gap. Since the 1930s, the government has used it to evict Black tenants under the guise of “urban renewal,” and bulldozed Black neighborhoods to replace them with highways and public housing projects.

“We have to have a broader conversation nationally and internationally about how much power we’re granting corporations to exploit communities, particularly Black communities, Indigenous communities and [other] communities of color,” said Justin J Pearson, the co-founder of Memphis Community Against the Pipeline, a grassroots group, which is also fighting Byhalia Connection in court.

The Byhalia Connection pipeline, which would link two existing pipelines stretching from Oklahoma to the gulf coast, was first announced in December 2019. For months, developers quietly pushed the project forward, but opposition to the project has been ramping up: MCAP has spent months canvassing neighborhoods along the pipeline’s path and hosted rallies and letter-writing blitzes, putting pressure on elected officials to vote in favor of city and county-level measures to block the pipeline. The group ballooned from three founding members in October 2020 to 3,900 Facebook group members as of April 2021.

Meanwhile, Energy Citizens, a group created by the American Petroleum Institute, has launched a campaign urging residents to write their elected officials in support of the pipeline, characterizing it as “under threat”. Developers say the project will bring an “economic infusion” of $14m to the mid-south, including $500,000 in annual property taxes and support for more than 500 employees and contractors at the Valero refinery.

But opponents, including MCAP, are skeptical, and many residents say their property values will decrease.

In March, the Shelby county commission voted to hold on to two vacant properties that developers needed to construct the pipeline. But developers are still suing for access to private land. Byhalia sued two elderly landowners, Scottie Fitzgerald and Clyde Robinson, after they refused the company’s easement offers of $3,000 and $8,000 respectively, to grant the company permanent access to a combined .36 acres of land. Crosby took on their cases in January.

Plains representatives have called eminent domain a “last resort” in defense of their legal action. “We are still working to find mutually beneficial agreements with all remaining landowners,” Jeff Cosola, public affairs adviser for Plains, told MLK50 in January. Scholars have found that the mere threat of legal proceedings related to the use of eminent domain – which residents along the Atlantic Coast and Mountain Valley pipeline routes have also experienced – causes homeowners to sell property and that this disproportionately harms low-income, Black, and elderly residents.

Johnson-Tutwiler said her interactions with pipeline developers have been anything but mutually beneficial. According to her lawsuit, a land agent expressed interest in her deceased mother’s property in February 2020 via social media. Johnson-Tutwiler did not respond. A month later, they offered her $3,500 for a 100ft easement.

“That’s an insult to me. That’s nothing,” she said. “While that oil is pumping, they’re still making money off of it while [they] gave these people kibbles and bits.”

She said developers kept pushing, texting her repeatedly. After agreeing to meet with the agent, she presented a counteroffer of $100,000, which was later declined. Meanwhile, two different agents reached out to Johnson-Tutwiler’s sister, Najwa Watson, who is also listed on the deed. Watson has multiple health issues and has not been in a position to negotiate, Johnson-Tutwiler said, so she asked the developers to stop contacting her.

Johnson-Tutwiler has her own health conditions to manage, including chronic asthma and lupus. One morning in January, her oxygen levels dropped to 80%, and her doctor told her to go to the hospital. She said that she then contacted the company through a fourth agent to inform him that she would not be able to make it to a 25 January court date due to her worsening medical condition. According to the lawsuit, the agent, Joe Hager, a project supervisor with Universal Field Services – an Oklahoma-based company specializing in land and right-of-way acquisition services – said that if she didn’t sign some paperwork, the court would allow Byhalia Pipeline to take her land for $148.

Johnson-Tutwiler stopped at a Starbucks on the way to the hospital to meet him, breathing with the help of an oxygen tank. “He didn’t care about my sister being sick, he didn’t care about me going to the hospital, he wanted those papers signed,” Johnson-Tutwiler said.

Johnson-Tutwiler recalled signing a few documents, which confirmed her ownership of the land and granted the company an easement. “Everything was very rushed,” she said, adding that she wouldn’t have knowingly signed away her easement.

Johnson-Tutwiler then spent more than a week recovering in the hospital. A lawyer for Byhalia Pipeline told a judge on 4 March that the company had reached an agreement with her and would drop the eminent domain suit. But Johnson-Tutwiler disagrees with that characterization.

“Byhalia Pipeline’s negotiating heft far outweighs any individual’s heft,” said her lawyer, Crosby. He filed a lawsuit on 14 April in an attempt to nullify the contract she signed, on the grounds that she was not granted adequate consideration before providing her signature.

He added that corporations invoking the power of eminent domain create “fertile ground” for imbalanced power dynamics that could influence decision-making, like duress, ambiguity and fraud. He added that if the easement Johnson-Tutwiler signed is made void, the company is likely to try to force Johnson-Tutwiler to sell her land using eminent domain as they are attempting to do with Fitzgerald and Robinson.

“We remain committed to treating our neighbors with care, respect and consideration,” Katie Martin, the communications manager for Plains, wrote in an email in early April. “We are working every day to live up to that commitment.” Company representatives declined to answer questions about Byhalia Pipeline’s relationship with Universal Field Services, or its plans to use eminent domain to take Johnson-Tutwiler’s land. A spokesperson said in an email that the company had paid 10 years in past-due property taxes on Johnson-Tutwiler’s behalf in addition to payment for the easement. “We’re confident that the evidence will show that the land agent treated Ms Johnson-Tutwiler fairly, honestly, and respectfully,” the spokesperson said.

Crosby said that based on calculations from the city and county tax websites, it “is possible and likely that Byhalia pipeline has paid $4,000 in back taxes” on the property, but Johnson-Tutwiler maintained that she and her sister had not received compensation for the easement. “I guess they think this whole situation is fair,” Crosby said. “It’s not.”

Alexandra Klass, a University of Minnesota law professor, said existing state law often clears the way for oil and gas developers to use eminent domain to keep building out new infrastructure. In the last three years, courts in Illinois and Iowa, for instance, have ruled that as long as a pipeline project helps keep down the price of oil, it constitutes public use and developers can use eminent domain.

Still, a state blocking oil pipeline developers from using eminent domain is not unprecedented. In 2010, the Colorado supreme court ruled that state laws enabling the use of eminent domain for pipelines, did not apply to “oil pipelines” specifically. In 2016, Georgia and South Carolina landowners’ opposition to the Palmetto oil pipeline resulted in a three-year moratorium on the use of eminent domain for new oil pipelines, and construction on the project was suspended.

In February, Barbara Cooper, a Tennessee state representative, and the state senator Raumesh Akbari introduced a bill that would change eminent domain law to protect property owners by ensuring more equitable compensation – but it doesn’t go as far as to narrow the definition of “public use.”

A push to stop the practice at the federal level is possible, but the Joe Biden administration signaled it may continue to support pipeline projects despite concerns over the climate crisis and environmental injustice. The administration filed a brief for an upcoming supreme court case that expresses support for the $1.2bn PennEast Pipeline Co using eminent domain to take 42 parcels of land along the route. On 9 April, the Biden administration also allowed the $3.8bn Dakota Access pipeline to operate without a federal permit allowing the pipeline to pass under Lake Oahe.

Opposition to the pipeline has grown in recent weeks. The former vice-president Al Gore recently called it “racist” and a “rip-off,” and Jane Fonda has voiced criticism. On Tuesday, the Memphis city council delayed a final vote on an ordinance that might hinder the pipeline, noting the need to prepare for a potential lawsuit from the developers. Pearson, from MCAP, said the project has brought to light the structural racism that has resulted in heavy industrial development and health disparities in south Memphis’ historically Black neighborhoods.

“This fight we’re in, it is both very physical but it is also very spiritual,” Pearson said. “And so there’s a great challenge in this fight and a great opportunity that our leaders locally can be responsible for taking on, and make history doing so.”

22 April 2021