The land where Patricia Kernan grew up, in the foothills of the Northern Catskills, is 1,000 acres of unbroken forest, from which trees have been carefully, sustainably harvested for at least 70 years. It contains a rare pristine sphagnum moss bog that has no invasive species in it, and just outside its borders is a lake that has been similarly protected. The land is now owned by a land trust, with Kernan and her four siblings making up the five trustees. Forestry covers the property taxes and allows the land to remain protected.
Or it has so far.
In danger of being forgotten in the (well deserved) celebration over New York’s fracking ban is the fact that we are still serving as the crossroads for the products of fracking—whether unsafe tanker cars of fracked oil from North Dakota or pipelines of natural gas from Pennsylvania and beyond.
Right now, the fight is along I-88, where Kinder Morgan, a company headed by a former Enron executive (remember them?), is trying to force landowners to let them put a new natural gas pipeline, known as the Constitution Pipeline, across their property, before the state DEC has issued all the permits and before the Federal Energy Regulatory Commission has given its final ruling (it has given “conditional approval”).
Attorneys and local activists fighting this pipeline say that pipeline capacity is currently limiting how much gas is being produced from the fracking wells in Pennsylvania. Give them a route, and they will increase their production.
Fighting these constant attempts to increase fossil fuel infrastructure capacity may feel like whack-a-mole, but clearly from a climate change perspective, every new pipeline is a disaster. That’s why there has been so much effort put into halting the major Keystone XL pipeline that would carry Canadian tar sands oil through the United States to export.
The Constitution pipeline might be smaller, running from northern Pennsylvania to Schoharie county, where it would connect into existing pipelines, but it bears many similarities to KXL: It would create precious few permanent jobs; its supporters try to talk about our need for access to fuel, but it seems clearly designed to allow access to export markets; its approval would set back the necessary transition to a lower-carbon-footprint energy infrastructure immensely by making exploiting some of the last remaining fossil fuels easier; and the environmental costs would be high. Some courageous land owners are trying to stand up and say no under incredible pressure.
Kernan and her siblings are among them. Opening a highway through their land would wreak havoc on it, she says, introducing invasive species, ruining much of the land for its intended use of forestry, risking the waterways, and destroying its sale value. “We’ve asked around—with a pipeline on it we wouldn’t be able to give it away. No one would want it,” she says.
Meanwhile, the company has launched 55 eminent domain proceedings against holdouts like Kernan along its proposed route. The public purpose served by these takings other than enriching a private corporation is, shall we say, murky. I just finished a book on eminent domain that makes an evidence-based argument that in practice people don’t object to eminent domain when it shows respect for people’s investment in their property—investment not just financially, but in terms of time, hard work, and commitment. Thus even the die-hard “property rights” advocates don’t bother fighting the taking of an absentee speculator’s abandoned property in order to do something that improves the quality of life of his responsible neighbors and protects their investment in their property.
Forced easements for pipelines don’t meet this test however—they destroy value in much prized and cared for land without creating any and create significant risks rather than protection for landowners: one other similarity to KXL is that the company has an abysmal safety record. Most recently it was just fined (a pathetically small amount) for illegally dumping toxic waste 73 times into Pennsylvania’s waterways during construction of a pipeline there. So we want to give them a permit to do this here because why again?
Taking people’s land to build this pipeline clearly fails to deliver a demonstrable public benefit that comes near to outweighing its significant big picture cost. This fight shouldn’t rest only on the shoulders of some brave and tired landowners. As Kernan says, “There are five of us and we’re not wealthy, but not poverty stricken,” and it’s still been a tremendous drain to fight legally. “What if all you have is five acres and a trailer?”
Public comment is open at the DEC until Jan. 30, 2015, and can be submitted to Stephen M. Tomasik, DEC—Division of Environmental Permits, 625 Broadway, 4th Floor, Albany, NY 12233-1750 or visit here.
(This column was originally published in Metroland, the Capital Region of New York’s former alt-weekly, on Jan. 15, 2015.)