by Eilish Spear
OBERLIN, OHIO — On a snowy night in Feb. 2018, the Oberlin City Council meeting was one of the liveliest rooms in the small college town, 40 minutes west of Cleveland. At issue was a $100,000 settlement proposal from the Canadian natural gas pipeline company, Enbridge Inc., regarding the proposed construction of the NEXUS Gas Transmission (NEXUS) pipeline through the town’s southern edge. Chants of “they’re breaking our laws, they’re taking our rights, but we won’t give up without a fight,” rang through the city council chambers as over 60 Oberlin College students and community members raised their voices in opposition to the settlement. City council members expressed frustration with the noise and disruption of the protestors. As tensions rose, it became increasingly difficult to see the reality: that the two seemingly oppositional forces were in almost complete agreement over the issue of the pipeline.
Five years earlier, before anyone in the town had even heard of the NEXUS pipeline, the City of Oberlin passed an ordinance known as the Community Bill of Rights and Obligations, which established an explicit ban on “gas and oil extraction and related activities.” The Bill of Rights would have been groundbreaking regardless of the circumstances, but for a town of 8,000 people and just five square miles, located in the heart of Trump country (nearly every surrounding precinct voted for Trump with a margin of over 60%), the ordinance explicitly banning natural gas fracking and pipelines was unprecedented. The ordinance stated that oil and gas extraction was banned “because that extraction and that waste disposal cannot be achieved without violating the rights of the people, environment and communities within the City by endangering their health, safety, and welfare.”
In order to cement its legal weight, the Bill of Rights removed “certain legal powers from gas and oil extraction corporations operating within the City of Oberlin; secures rights that supersede state laws, permits, and other authorizations which interfere with the rights secured by this ordinance; and imposes liabilities and fines for violations thereof.” The Ordinance, ultimately passed with more than 70% of the vote, stated that any “person or corporation” in violation of the Ordinance “shall be guilty of a criminal offense,” and any violation would bear no legislative weight in overturning these established rights of the citizens and environment of the City of Oberlin.
When Spectra Energy (later purchased by the much larger pipeline company Enbridge Inc.) proposed the NEXUS Gas Transmission pipeline project a few months later, Oberlin’s Bill of Rights faced its first test. The proposed pipeline would run for 257.5 miles, originating at the Kensington Processing Plant in Columbiana County, Ohio, and extending to Michigan before connecting with an existing project that would carry natural gas to the Dawn Hub in Ontario, Canada. Through connections with existing pipelines managed by Texas Eastern, DTE Gas, and Vector Pipeline—a routine agreement in such pipeline developments—the NEXUS pipeline was intended to connect markets in the Appalachian Basin with Chicago , other midwestern markets, and Canada. At peak capacity, the 36-inch diameter pipeline would be able to transport 1,500,000 dekatherms (Dth)—1.5 billion cubic feet (Bcf)—of natural gas per day.
On the surface, the NEXUS pipeline appeared to be just another natural gas pipeline in an era of rampant energy infrastructure growth and lax federal regulation on the oil and gas industry. Yet the seemingly routine pipeline proposal became contentious when news surfaced of its route through the densely populated counties of northeast Ohio: Stark, Summit, Medina and Lorain. Oberlin, a small, liberal college town with an ambitious carbon neutrality plan and a community bill of rights explicitly banning just such infrastructure development, is situated in the middle of Lorain County and almost exactly half-way along the proposed pipeline route.
The City of Oberlin has a long history of progressive activism, largely because of the college that makes the town its home. The first co-educational institution of higher education and the first to allow people of color, Oberlin has been on the front lines of social change and environmental activism since its founding in 1833. Its environmental and social progressivism has extended to the town around it, culminating in the town’s carbon neutrality plan and Community Bill of Rights and Obligations. The college thus attracts student activists, and inspires them enormously once there. This history of activism has also repeatedly exposed fissures within the progressive left itself. The fight over NEXUS was no different, with deep divides in the nitty gritty process of the organizing and in the grander, more ideological questions surrounding what, exactly, was even being demanded.
Rachael Hood, a lead organizer of the student group Students for Energy Justice, said that Oberlin’s history is both inspiring and educational, given the unique challenges of the process in such a small community. The challenges are completely different than in a large city because, as Hood put it, “this is a small town, and everybody knows everybody.” “If you’re in a big city, it’s really easy to just criticize a person and a platform or to criticize a group, but in Oberlin, everybody knows someone who is involved. You [always] know someone who knows the person you’re talking about, and it’s a lot more personal. I think in that way activism is challenging in Oberlin, because you are faced with a lot more of humanity. It’s about real people.” Hood said that “if you can be a strong activist here, you can be a strong activist in a lot of places. Because here you have to deal with the personal aspect of it.” The personal aspect of activism, and thus of the fight against NEXUS, combined with the unique legal circumstances of the City of Oberlin, made the town a prime candidate for a dramatic fight to come.
FERC
Because the NEXUS pipeline is ultimately an interstate and international project, the project required the review and authorization of the Federal Energy Regulatory Commission (FERC), only after which would the pipeline be licensed to continue. In response to Spectra Energy’s official application for a license in November 2015, the City of Oberlin, as well as groups including Citizens for Safe and Sustainable Energy (CSSE), the Coalition to Reroute NEXUS (CORN), Sustainable Medina, and the Sierra Club, all filed testimony in opposition to the pipeline. However, it was not until Nov. 30, 2016 that FERC approved the NEXUS pipeline. Writing in its environmental impact statement (EIS), the commission acknowledged that there would be “some adverse environmental impacts,” but justified the project by writing that “impacts would be reduced to less-than-significant levels with the implementation of NEXUS’ and Texas Eastern’s [one of the affiliated pipeline companies] proposed mitigation measures and the FERC staff’s recommendations.” FERC established an environmental compliance inspection program to ensure that SPECTRA would not violate existing environmental regulations, an action they believed was enough to ensure that the pipeline would not be a disaster.
The approval process stalled when the Obama administration-appointed commissioner Norman Bay resigned in January 2017. Because the commission did not have a voting quorum, the NEXUS pipeline approval was delayed until Trump nominees Neil Chatterjee and Robert Powelson—both with ties to the oil industry and pro-pipeline policy positions—were confirmed by the U.S. Senate on Aug. 3, 2017. With a voting quorum restored, the commission granted final approval of the NEXUS pipeline on August 25th, 2017. Their appointments indicated a nation wide shift towards more pipeline approvals.
But the City of Oberlin and environmentalists were not yet defeated. John Elder, founding member and vice president of Citizens for Safe and Sustainable Energy (CSSE), an Oberlin environmental advocacy group, said that his and several other groups filed for a re-hearing of the issue. The request for a review of a potential re-hearing was successful, and FERC agreed to re-examine the decision.
Carolyn Elefant, an energy and eminent domain attorney hired by the City of Oberlin in 2015 to represent the town throughout the FERC proceedings, described the three primary tenants of Oberlin’s legal argument for a re-hearing. First, the pipeline was in direct violation of the city’s statutes—namely, the Oberlin Community Bill of Rights, which bars oil and gas infrastructure within city limits. Second, according to Elefant, the pipeline was not necessary. Six other pipelines in various stages of litigation and construction are within a reasonable distance of the proposed NEXUS pipeline, and could conceivably carry all of the expected capacity of the NEXUS pipeline. Indeed, the upcoming ET Rover pipeline, a 713-mile long pipeline with a 42-inch diameter, will run an almost identical route to the NEXUS pipeline in places throughout Ohio.
Although the NEXUS pipeline is designed to carry 1.5 billion cubic feet of natural gas per day (in comparison to the Rover pipeline’s potential for 3.25 billion cubic feet per day), the majority of pipelines do not carry even close to their maximum daily amount, particularly after the initial contracts for extraction have expired. Because the initial contracts for many of these other, similar pipelines’ capacity requirements have already expired, capacity in many has been freed up, meaning that existing pipelines could carry the proposed expansion. Finally, according to Elefant, Oberlin’s case for a rehearing included the potential for alternative routes that would bypass the city, eliminating the legal battle altogether.
It is in the numerous requests for rehearing from community groups and the City of Oberlin that the remarkable fight against the NEXUS pipeline emerges. While similar pipelines in the area like the ET Rover pipeline were pushed through the FERC licensing process without sufficient care for environmental and economic concerns—not to mention actual necessity—NEXUS was and continues to be met with emphatic opposition.
On July 25 of this year, FERC denied the appeal for a rehearing in an 85-page rebuttal to the claims made by the interested parties, particularly those of Sierra Club and the City of Oberlin. The decision was not unanimous, however. Commissioner Cheryl LaFleur, who originally supported the approval of the NEXUS pipeline and again voted in favor, published a partial dissent. Although she originally believed the project was in the public interest, LaFleur argued that “the Commission erred by finding that downstream GHG emissions in this case are not indirect impacts that must be quantified and considered as part of our responsibilities under the National Environmental Policy Act (NEPA).” FERC’s unwillingness to take into account downstream GHG emissions of the NEXUS pipeline was not an outlier. In the Tennessee Gas Pipeline approval process, FERC decided that “because it does not know where the gas will ultimately be consumed,” it was impossible to determine the exact amount of GHG emissions for the project.
LaFleur’s insistence that the commission did not take climate change into account when considering the pipeline established an interesting potential precedent for pipeline fights in the future. Commissioner Richard Glick agreed with LaFleur, and also noted that the Commission did not demonstrate the necessity of the pipeline. “I do not believe,” he wrote, “the Commission can find that the Project is in the public interest without determining the significance of the Project’s contribution to climate change.”
Despite this defeat, the City of Oberlin and other parties are not completely devoid of hope. According to Elefant, any or all of the parties can now file a Petition for Review in federal court. “There are 60 days to file a petition for review,” Elefant said, “so it gives people a chance to think about whether they want to take that as the next step.”
Elefant said that if the case is appealed, “you’re starting out with at best a 25% chance. But if you do win on these issues, and the court were to say, ‘look FERC, there isn’t really any need for this project,’ that would mean the project violates the Natural Gas Act. The company would have to remove it.” This ruling gets to the core of FERC’s decision and raises critical challenges to the energy industry, and could ultimately result in the project’s rejection. But, says Elefant, for more procedural challenges—for instance, if NEXUS should have considered an alternative route—FERC would simply have to go back and reconsider the issues, “and if it found that they should have looked at something and it was more serious than they thought, the remedy would probably be more along the lines of additional mitigation rather than pipeline removal.” When asked if he thought there was anything that the City of Oberlin, Citizens for Safe and Sustainable Energy, or any other interested party could have done to produce a different result, John Elder sullenly replied, “probably not, given how FERC operates.”
FERC is, however, undergoing an internal review. Organizations like Citizens for Safe and Sustainable Energy have urged Ohio Senators Sherrod Brown and Rob Portman to “call for hearings into FERC’s abuses of law and of power.” The open comment period closed on July 25 of this year, but it is unclear when the result will come out. John Elder, founding member and now vice president of CSSE, said thousands of comments urged FERC to take climate change into account. “The industry of course took the opposite side: speed up the process,” Elder said. “We don’t know yet how the commission will re-write the rules of its procedures. But we’ll keep pressuring.”
Eminent Domain
The slow regulatory process has not halted the pipeline’s progress. According to Rachael Hood, Oberlin students observed the NEXUS construction crews starting initial pipeline construction preparation and cutting down trees in late March. Official construction work began at the end of May, despite the fact that the FERC reviewal process was not yet complete.
How can a company start construction without having final authorization to the project, or any official rights to the land? The secret lies in the intricacies of eminent domain, “the power of the government to take private property and convert it into public use.” Originally intended to ensure that landowners would be justly compensated for public (government) use of their land, and thus to ensure that private property—a keystone in the maintenance of a free and democratic society—was protected, particularly in large scale transportation and infrastructure projects, eminent domain has been manipulated in every which way by the government, private landowners, and major corporations. Once NEXUS was granted a certificate, says Elefant, the pipeline company went to court with the City of Oberlin to achieve the power of eminent domain in the city. In its suit, The City of Oberlin raised several arguments for why it was premature to even exercise eminent domain. A vast majority of the challenges to the pipeline involve the very fact that it was in violation of the Constitution. Because most, if not all, of the natural gas transported through the pipeline was going not to Ohio markets, but to Michigan and ultimately Canada, the argument that the pipeline was a public utility, and thus qualified for eminent domain—private property utilized for public use—was invalid. Elefant says that “even city property under the Constitution is considered private property. For purposes of the Constitution, it can’t be taken for a private use: it has to be taken for a public use.”
If land is approved for public use, there must be compensation equaling the value of the land in question. For NEXUS, this process included extensive surveying along the route of the pipeline, including entering private property without permission to prepare for construction. In some cases, armed officers accompanied these surveyors. Hood described a process in which pipeline surveyors “go door to door along the route, and try to get people to sign off their land in an easement.” If they refuse, the surveyors “will then say ‘oh all of your neighbors have already signed off, you should just sign it,’ and so then they’ll sign it. But maybe their neighbor didn’t sign it, and so now their neighbor is surrounded by people who have signed.” On the other end of this process, Elder said “the Sierra Club [was] looking for landowners who were refusing to sign leases. We couldn’t find any land owners. Even landowners who didn’t want the pipeline nevertheless had to sign leases.”
The City of Oberlin continues to put up a fight. Elder says that as far as he knows, “the process of eminent domain for the City of Oberlin property is not yet complete. A court has to determine the value of the taking of the property, and NEXUS has to have paid the city that amount of money before the eminent domain process is completed.” But, because federal law overwhelmingly supports the rights of pipeline companies over those of individual land owners and municipalities, “pipeline companies have powers to go ahead and do a lot of things even before that eminent domain process is completed.” NEXUS can do all but lay the pipe across the land before ink has even dried on the decision.
Elefant doubted that the City of Oberlin’s eminent domain challenge would succeed in court. “It’s nothing to do with the quality of the attorneys or anything, it’s just [with] eminent domain, once they see a FERC certificate, they will always grant the use of eminent domain.” The status of the City of Oberlin’s challenge is as of now unclear; the Law Director of the city did not respond to a request for comment.
Settlement, NIMBY, and the Place of Community Activism
Back in the Oberlin City Council Chambers on March 5, 2018, two weeks after the tense and dramatic session where protestors disrupted the proceedings, City Council unanimously voted against the $100,000 settlement to Enbridge, Inc., cementing the city’s commitment against the oil and gas industry, in keeping with its Bill of Rights and the will of the vast majority of the community. The decision was neither easy nor a resolution to the problem. A few weeks earlier, the neighboring city of Green, Ohio, settled with the company for $7.5 million, after spending thousands of dollars on proposed alternatives to the pipeline and in similar fights as Oberlin.
Oberlin’s final decision was the result of three separate meetings for an emergency vote on the settlement. The first two ended in split votes over the issue of the settlement, apparently inspired by NEXUS’s promise to bury the pipeline underground and thus allow for the construction of a new water main. However, the company instead decided to continue with an elevated pipeline that would block the new water line despite opposition from the Oberlin community.
The unanimous rejection of the settlement bore little weight against the inevitability of the NEXUS pipeline in Oberlin. Council President Bryan Burgess told The Morning Journal, “It kind of defeats the purpose of having an agreement if they jump the gun on it.” Councilmember Ronnie Rimbert agreed. “There is no doubt in my mind that we have lost our long battle with NEXUS and the Federal Regulatory Commission over the pipeline. The pipeline will go in,” Rimbert told the Oberlin Review. The vote was purely symbolic.
The environmental advocacy organization Coalition to Reroute NEXUS, or CORN, was established in direct response to the pipeline, and has been one of the primary organizations in the fight against its construction. CORN’s mission statement indicates an acceptance of building infrastructure “for getting Ohio’s energy to market” while arguing for an alternative route that travels through a less densely populated area. In fact, this form of activism, known as NIMBY or “not in my backyard” has substantial scholarly backing. Political scientist Carol Hager argues that NIMBY activism actually has the potential to be a beneficial method of environmental activism and increase participatory politics. In the case of the NEXUS pipeline, many advocates, particularly members of CORN, argue that a compromise over the route of NEXUS is the best possible solution; they say it would protect vulnerable communities and population centers, move the pipeline away from crucial watersheds, prevent environmental disasters, and meet the area’s energy needs.
No discussion of a pipeline fight would be complete without acknowledging Standing Rock, the Reservation in North Dakota that was a site of protests against the Dakota Access Pipeline. While NEXUS does not bear the same concerns over indigenous rights as the Dakota Access pipeline, the implications of NIMBY activism ring a familiar tune. Rachael Hood is adamant in SEJ’s disavowal of the practice, as opposed to arguing for a reroute like CORN. “Oberlin students and SEJ have never supported the NIMBY activism, we’ve always said ‘no pipeline here no pipeline anywhere.’”
NIMBY, she says, is an incredibly harmful practice that “completely violates any sort of environmental justice standard and obviously targets poorer and more marginalized communities.” For instance, the Dakota Access Pipeline fight originated “because they rerouted it through the reservation because a majority white neighborhood didn’t want it,” resulting in the abuse of indigenous rights and a community that did not have the legal power or resources to fight the immensely powerful oil and gas industry. Hood continued, “NIMBY makes me very upset, because if you don’t want it in your community, and you think it’s so damaging, then why would you want it anywhere else?”
Elder is equally adamant against NIMBY, despite his understanding that CSSE must be willing to work with groups like CORN to achieve their similar goals. “I made it clear that personally I did not agree with their rerouting because that means it will just be in somebody else’s backyard,” he said. But, Elder continued, “if we don’t talk with each other then we can’t learn from each other, and we’re going to need to be allies in this process.” Elder is still convinced that he was correct in this assessment, particularly as many members of CORN have begun to see the harmful results of fracking and pipelines, particularly as many similar pipelines, including the ET Rover pipeline, have resulted in enormous natural gas spills since their construction.
The issue of NIMBY relates back to the settlement under consideration in the Oberlin City Council. When the city of Green settled with NEXUS, it appeared that the city had been resigned to the inevitability of the pipeline, and determined to bite the bullet and get at least a small amount out of it. But in Oberlin, the settlement became a symbol of the fight itself.
The incredibly human and personal aspect of activism at Oberlin—so eloquently described by Hood—makes the decision not to settle, and the decision to ask for more than a mere reroute of the pipeline, a whole lot more difficult. When asked what it means to advocate not only for a negotiation within a system where the oil and gas industry wields immense power, but rather a fight against the system itself, Hood says that winning becomes profoundly more difficult.
In a fight that pits a town of 8,000 against a natural gas boom, a Fortune 500 company with $57.6 billion in assets—often rated as one of the most popular stocks for investors—and federal laws and regulatory bodies that overwhelmingly favor pipelines over environmental and economic concerns, these questions are ubiquitous. Hood, for her part, believes that radical change and big social movements are not possible if the end goal is to settle for something “slightly less upsetting or slightly less awful.” Moving the pipeline a few hundred feet away from Oberlin’s water source, for instance, doesn’t help the people who are the most vulnerable victims of climate change. “I think that SEJ believes in radical change that comes from taking down the entire fossil fuel dependency that we have and fighting for a livable world where people aren’t ripped out of their homes because they’re going under water.”
“We’re not seeing the pipeline being moved as a win. The win is when the pipeline isn’t there,” she said. But she is still hopeful. “I think your wins aren’t as obvious, but I also think that when you’re building a movement your fight doesn’t end with this one pipeline. If you don’t have things exactly how you want them in this one pipeline fight, I think you can still argue that you’re making progress in this greater movement. If you see moving the pipeline route just away from your water source as the win and the end of the movement, that’s not the success that I’m looking for.”
The existential angst that is evident in activism over the NEXUS, represented by the contradictions between allies like SEJ, CORN, and the cities of Oberlin and Green, and heightened by Oberlin’s long history of student and community activism, is a microcosm of the questions of environmental activism everywhere. What does it mean to ask for a complete overthrow of the existing system, while also ensuring that the poorest, most marginalized, and most traditionally silenced people do not bear the burden of the consequences for such demands? How can incrementalism and essentialism be combined for the actual, real-life people on the ground?
As for the issue of the settlement, and the argument that since the pipeline was, by early 2018, essentially inevitable and thus Oberlin should simply accept the settlement, both Hood and Elder are adamant in their disdain. “I understand and I don’t minimize that $100,000 is a lot of money,” says Hood, but she pointed out that $100,000 is about .8% of the city’s total budget, and in the grand scheme of things, not at all worth the concession. For his part, Elder pointed out that since the majority of the citizens of Oberlin had voted in favor of the Community Bill of Rights in 2013, it would be in violation of their rights to even consider voting for the settlement.
The ability to refuse $100,000 is nevertheless a position of extreme privilege, one that the City of Green, for instance, did not feel they had. “I agree, that’s a very privileged standpoint to have,” Hood said. But, she continued, “when you have privilege, it’s your responsibility to use that privilege to fight for people who don’t have that option. I’ve talked to people in the surrounding counties who say ‘Oh my gosh, Oberlin is an inspiration. They never gave up the fight.’”
The symbolism of a small Ohio town united around a shared commitment to environmental justice and the rights of its citizens, standing up to an international pipeline is immensely powerful. “I think that we have the opportunity to keep fighting when a lot of people couldn’t,” Hood said. “I think that it meant to a lot of the people around us that those people in Oberlin, they’re not going to stop fighting.”
Eilish Spear is a junior from Oberlin College and Oberlin Conservatory of Music studying politics and viola performance.
The views expressed in this article are those of the writer. The Contemporary takes no position on matters of policy or opinion.
The cover photo is courtesy of Rachael Hood.
