We just received word that the Michigan Cats protestors have been convicted on all counts. We are angered and saddened by the news. More coming soon.
We’ve been caught up with some matters not directly related to Enbridge (though not completely unrelated either!). Some companion legislation to a bill giving tax breaks for oil and gas development proposes to eliminate some protections for property owners subject to condemnation when a pipeline company comes a-calling. That should sound familiar to folks along the Line 6B route. We know first hand how the kind of disregard a pipeline company can have for landowners. At the very least, if our state is going to encourage the building of more pipelines–and we’re not convinced at all that that’s a good idea– protections for property owners should be considerably stronger, not weaker. So if you haven’t already, please take a moment to contact your House representative and register your objection to HB 5254.
But that’s not the point of this post. We’ve been so focused on this matter, we’ve failed to update you on another one: the MI CATS protestors– the ones who attached themselves to Enbridge equipment at a work site last summer are currently on trial in Ingham County. To catch up on the deliberations the past few days, you can read news articles here and here and here and, in even more detail, at the MI CATS web page.
We hope you will show them a bit of support. The form of protest they engaged has its risks, to be sure– and they know that. But the felony charges they’re facing are, in our view, totally disproportionate and appear to be the result of a pointlessly aggressive prosecutor trying to be a hardass and a judge who, for reasons that aren’t at all clear, is oddly petulant and self-indulgently blustery. We fail to see how the harsh prosecution of these three individuals–Barb Carter, Lisa Leggio and Vicci Hamlin– in any way protects the public or serves the public interest– especially when the state (in the form of the Governor, the legislature, and the MPSC) has failed so miserably to protect the public and landowners from Enbridge’s misbehavior and its attempts to skirt regulations, flout local ordinances, violate its permits, and abuse its easement rights (go ahead, check our archives). Is there anybody who seriously thinks, to take one small example, that what these protestors caused more public harm than what Enbridge did to Ore Creek? This prosecution is a vivid example of how wealthy and powerful get to have their way while those without wealth and power who try to call foul take it on the chin. That is not kind of justice.
This is why, although we’re not likely to go chaining ourselves to any construction equipment any time soon, we still support the MI CATS.
As we said yesterday, we learned some things– not all of them very helpful or comforting– by watching the morning’s House Energy and Technology Committee hearing on House Bills 4885, 5254, and 5255. One thing that became very clear is that the legislation is not, as we at first supposed, aimed principally at encouraging fracking (although it certainly doesn’t rule it out). Rather, the bill is primarily driven by Enhanced Oil Recovery, a process of extracting more oil from existing wells by injecting CO2 to help carry it to the surface. Relative to other kinds of oil and gas development, as we understand it, EOR isn’t so bad.
This bit of clarification came, in part, courtesy of the testimony of an executive at Core Energy. Who, you might ask, is Core Energy? Well, according to their website:
Core Energy, LLC is actively involved in innovative oil production technologies and is the only company in Michigan currently performing CO2 Enhanced Oil Recovery (EOR) operations, which is making Michigan’s economy stronger and more energy independent while sequestering CO2. In addition to CO2 EOR, Core Energy is leading the way for Geologic CO2 Sequestration in Michigan by hosting a public/private partnership to research the storage potential of Michigan’s geology. Geologic CO2 Sequestration is a world changing technique that could help clean the atmosphere by removing CO2 and permanently storing it deep underground.
Now, the fact that we are talking about a bill more or less specifically designed, evidently, to help advance Core Energy’s interests is plenty troubling– but in an unsurprising sort of way. Far more troubling, however, is that the guy from Core Energy seemed to be the only one in the room who knew much about the particular bill in this grouping that has us most upset: HB 5254. That’s the one that would change some language in Act 16 from “landowner” to “owner of agricultural property.”
A few of the Committee members, notably Collene Lamonte and Marylyn Lane asked about this change specifically. The main sponsors of the legislation, Aric Nesbitt and Rick Outman, didn’t have a clue. They were clearly just following orders (which is pretty appalling; is it too naive to expect that sponsors of legislation understand the legislation they are sponsoring?!). The closest anyone came to providing a clear answer came from the guy from Core Energy and the representative of the MPSC.
Their claim is that the change is just a “technical change.” They insist that the original intent of the section of Act 16 in question was only to provide provisions for agriculture. Therefore, changing “landowner” to “owner of agricultural property” is merely to clarify the original intent of the law. We suspect that quasi-explanation satisfied some of the members of the committee. However, there are serious problems with this “explanation”:
First, it may very well be true that the legislators who passed the law in 1929 were thinking mainly of farm land. That certainly seems plausible. But then again, it might not be true. After all, the line with the proposed change is not the only place in that section of Act 16 where the word “landowner” is used. For example, here is the change we’re talking about:
3) Any offer to
a landowneran owner of agricultural property for an easement for the purpose of locating, constructing, maintaining, operating, and transporting crude oil or petroleum pipelines on agricultural property in this state shall include all of the following information:
In fairness, it may well be that the change indicated above does clarify that sentence somewhat. However, in the context of the rest of the section, it’s not all that helpful. For instance, this is what it says just below (3):
(a) The anticipated physical impact of pipeline construction on the landowner’s property.
Does landowner here mean “an owner of agricultural property”? Or what about a little later in the section, where it says this:
(g) That the landowner has rights under the uniform condemnation procedures act, 1980 PA 87, MCL 213.51 to 213.77, and a copy of the act to the landowner.
Does the word landowner here also only mean “owner of agricultural property”? Or is the use of the term this time describing any landowner? The point is this: if the original intent of the law was to apply only to agricultural property owners, why did the original law sometimes use that term and other times use the term “landowner”? Or, if those terms are supposed to be interchangeable, why doesn’t the newly proposed law change the word landowner throughout? Better yet, why doesn’t it just clarify this in the “definitions” at the top of the section and be done with it?
So there are two problems here: first, the intent of the original law is not at all as clear as Nesbitt and others want to convince us it is. Secondly, the attempt to clarify that matter by the drafters of the new bill (whoever they are; clearly it’s not Nesbitt) is also not clear. In fact, it is a really awful attempt at clarification. Maybe that’s why Aric Nesbitt is so willing to make it clear that he did not draft it. We don’t blame him.
But that’s not all. So secondly, even if one wants to accept that the “intent” of this part of the law pertains only to agricultural property, the law as written appears to cover non-agricultural landowners as well. Given that fact– though this is a matter of legal interpretation of the sort that we’ve discussed before— why would lawmakers not simply want to err on the side of more landowners being protected rather than fewer? What do the citizens of Michigan have to gain by limiting the people to whom these very minimal protections apply?
Thirdly, even the clarifying term “agricultural property” isn’t especially clear. What is the definition of agricultural property? For instance, we have a very large garden here and fruit trees. Does that make ours an agricultural property? We also have friends who raise goats and chickens for their own use. Does that property count as agricultural?
Fourthly, once again contrary to what Nesbitt & co. would have us believe, there are very good reasons why the protections in the section of the act in question should apply to all landowners. Here, for example, are some of those protections:
(b) Written assurance that any agricultural drainage tile that is damaged or removed during the construction or repair of a pipeline will be repaired or replaced to preconstruction working condition. As used in this subdivision, “drainage tile” includes any surface or subsurface system by which the movement of water is redirected.
(c) Written assurance that topsoil that is disturbed due to construction or repair of a pipeline is properly separated and replaced. As used in this subdivision, “topsoil” means surface soil that is presumed to be fertile as distinguished from subsoil.
(d) The method by which property will be appraised.
Let’s take these each, briefly, in turn: (a) there are plenty of properties, like ours, that used to be farmland. And many of those properties have drainage tile on them. Why would that drainage tile be exempt from these rules? (b) the mixing of topsoil has been a serious problem on the Line 6B project, even on our very property. Why shouldn’t the separation of topsoil issue apply to everyone’s property? After all, it’s not just crops that need good topsoil; trees do too. And (c) lots of us have concerns about how our property was appraised by Enbridge. Those appraisals were the source of a great deal of contention during compensation negotiations. Why wouldn’t the legislature want all landowners to know how their property is being appraised?
Lastly, the final provision in this part of the Act is as follows:
(g) That the landowner has rights under the uniform condemnation procedures act, 1980 PA 87, MCL 213.51 to 213.77, and a copy of the act to the landowner.
According to the sponsors of the bill, “landowner” here means “an owner of agricultural property” (even though, as we noted above, they’re not changing this language). Why in the world would legislators not want ALL landowners, agricultural or not, to be notified of their rights under the uniform condemnation procedures act? What could possibly be gained by NOT requiring that a copy of that act be given to all landowners?
The bottom line is this: there is absolutely NOTHING to be gained by the public if the changes proposed in HB 5254 are passed. Nothing. The only benefits bestowed by the changes would go to oil and gas companies, who would have to be somewhat less careful with regard to their dealings with non-agricultural landowners. Furthermore, what the Act presently requires is so very minimal that it in no way harms those same oil and gas companies in the slightest. In other words, HB 5254 is completely inessential to this legislation as a whole. The ONLY thing it does is removes protections for landowners. That is its only effect. Why would a single legislator, Republican or Democrat, possibly vote for such a thing?
Wow! This morning, we spent some time watching the House Energy and Technology Committee hearings on the three bills we’ve been squawking about over the past few days. It was both interesting and very disturbing. We learned a lot, some of it clarifying and some of it just plain maddening. As soon as we can, we’ll try and give a full account of the hearings and a better discussion of the questions at stake in the legislation. Needless to say, our concerns have not been alleviated. For now, here’s a quick teaser list of some of what we learned:
- Our original assessment that the legislation is mainly about fracking isn’t exactly correct. As we explained in our follow-up post, it appears to have more to do with “Enhanced Oil Recovery”– which isn’t, however, to remove fracking from the equation entirely.
- The main sponsor of the legislation, Committee Chairman Aric Nesbitt, doesn’t appear to understand the bill very clearly at all. He spent a lot of his time saying things like “what I’m told” and “from what I understand.” Needless to say, that does not provide much comfort.
- Which means that Nesbitt obviously didn’t write the legislation. He’s just doing someone else’s bidding. Whose bidding? We aren’t entirely sure.
- But here’s one possibility: during his testimony, the executive from Core Energy (we didn’t catch his name, but check out what it is they do!) spoke about Act 16 as if he were some kind of expert on it. He seemed to know more about the reason for HB 5254 than anybody else in the room. Yes, that’s right, the one person who has more to gain from this legislation than anybody else on the planet was explaining it to the legislators.
- The MPSC, indifferent to the interests of the citizens it is supposed to protect, is not the least bit bothered by the change proposed in HB 5254. Even worse, the MPSC representative went out of his way to describe the MPSC’s charge in precisely the terms created by Enbridge’s lawyers. So just as we’ve said in the past, Enbridge has successfully re-created the MPSC in its very own image.
- Our own representative, Joseph Graves, did ask a question about landowner rights–but rather half-heartedly, we thought. His colleagues Reps. Marilyn Lane and Collene Lamonte, on the other hand, were tenacious and proved themselves true champions of Michigan citizens. We applaud their efforts.
- Finally, we’ve been a little baffled by the lack of interest in this matter by various environmental groups. The Sierra Club, however, has stepped up and articulated clearly and forcefully their opposition to this legislation.
Much more– including more on why the feeble attempts by those at the hearing attempting to dismiss concerns about HB 5254 were completely unpersuasive– as time allows.
On Friday, we brought you the disturbing news of some new legislation introduced in the Michigan House of Representatives by Rick Outman. HB 5254 makes a very subtle and seemingly small change to Act 16, the Crude Oil and Petroleum Act, removing the word “landowner”and replacing it with “owner of agricultural property” from the section of the bill describing the rights of those whose property will be acquired through eminent domain.
This, in our view, is a proposal that should trouble everyone. Whatever your view of the use of fracking or oil and gas development or state energy policy or climate change, it’s hard to imagine anyone– with the exception, it appears of Rick Outman and his compatriots in Congress– who thinks that pipeline companies should get to do whatever they want, without any rules or restrictions, with your private property. Trust us, when some company comes knocking on your door, backed by the state, to dig up your back yard (and you can’t stop it), you will hope that there are as many rules and regulations in place to make sure they behave and treat you and your property respectfully as possible. Just ask these people. As it stands right now, there are precious few such rules. After this bill, there will be even fewer.
Which is why we believe this is an issue that should create bipartisan coalitions. EVERYONE should be troubled by it, from conservative anti-government champions of private property rights to liberal environmental groups looking to halt or at least slow oil and gas development. We’ll be interested to see if such groups, whether alone or together make any noise about this bill. We certainly plan to and we have already written our state representative Joseph Graves. We’ll be sure to update you on his response.
In the meantime, there’s a bit more to this story that we need to share. As it turns out, this legislation is not solely about fracking, although that is certainly an element of it. It is actually part of a suite of interrelated bills designed to promote gas and oil development (an effort that, according to an MiLive story this morning, has yet to pay off). In fact, the two bills we mentioned on Friday (HB 5254 and 5255) will only take effect with the passage of another bill HB 4885. That bill, sponsored by 16 House Republicans, including Joseph Graves would give tax breaks to oil and gas developers by significantly reducing the severance tax those companies currently have to pay to the state for the oil and gas they extract.
In fact, something else we learned after looking in to this is that CO2 is not just used for fracking. It is also commonly used for oil extraction as part of what is called “Enhanced Oil Recovery.” So this suite of bills is not only promoting fracking, but further oil development as well.
But, again, you don’t have to oppose HB 4885 and the encouragement of more oil and gas exploration– personally, we do oppose it; we think it’s the wrong path for Michigan and poses too many dangers to our precious natural resources–to oppose its companion legislation. Indeed, it’s astonishing to us that the sponsors of the tax break bill aren’t proposing exactly the opposite sort of companion legislation: a bill that would give landowners MORE, not fewer, protections. That would seem to be a way to make the prospect of more development and more pipelines more palatable to those who might otherwise oppose it.
Instead, for reasons we simply can’t fathom our state elected officials– too timid and cowardly even to require energy companies simply to behave themselves on the properties of those constituents the official have been elected to serve– seem to want even more Michigan citizens to endure the pain and misery experienced by Line 6B landowners.
Please call or write your state representative and urger her or him to stand up for private property rights, and for the protection of the interests of you and your fellow citizens, not those of the oil and gas industry.
Note (Jan. 28, 2014): the House Committee on Energy and Technology held a hearing on this legislation this morning. Here is a brief overview of what happened. More to come.