by James Coleman —
Memphis City Council members last week strengthened their hand against future pipeline developments after unanimously passing a long-awaited rights-of-way ordinance that gives the body final say on future underground infrastructure projects.
“The right-of-way ordinance regulates every street and right of way in the city. It completely covers the universe of potential routes that any kind of pipeline or any kind of utility can use. It cannot go forward without your consent,” said council attorney Allan Wade during the session last Tuesday (Nov. 16).
“I’m always jealously protecting your authority and this gives you complete authority to make the decision about where utilities are located.”
However, the most stringent of pipeline opponents didn’t get everything on their anti-pipeline wish list after the council rejected a lingering joint ordinance with the county.
That ordinance would have prohibited oil pipelines construction within 1,500 feet of schools, churches, parks and recreation areas.
Wade felt it redundant and said it could also weaken the right-of-way ordinance. Several council members agreed.
It was the third and final reading for both ordinances.
Several Memphians spoke in support of both ordinances before votes were held, including activists prominent in the anti-pipeline efforts.
“The truth is this, if another crude oil pipeline was coming, we know which community they would try to go through,” said Justin Pearson, co-founder of Community Against the Pipeline. “We know what the demographic would be. We know what the finances of those people are.
“And the only folks who can create that power, who can say, ‘If you want to come here, you gotta come through us,’ is this group (the council) right here,” said Pearson, as he gestured towards the council members. “So, we need you to use all your power, don’t just use half of it.”
The movement was spawned from the proposed Byhalia Pipeline project. Texas-based Plains All-American ultimately pulled out in the summer after staunch opposition.
It was considered by many to be a threat to the Memphis Sands Aquifer, the city’s main source of fresh water. It also would have run through primarily Black neighborhoods in Southwest Memphis.
The rights-of-way ordinance had been amended since the last meeting on Nov. 2. Some of the concerns that welled up were protecting existing underground pipes – gas mains, water mains, sewer, stormwater and telecom. It also spells out other worries like bonding and oversight.
“There was some concern that pipeline companies don’t provide bonding, don’t provide insurance. This provides all of that. It also provides intensive oversight by our engineering department in terms of location and types of materials,” added Wade.
A general, broadened definition for utilities was also settled on. There was some concern that an ordinance that dealt strictly with crude oil pipelines could give companies such as Texas-based Plains All American Pipeline an opening to claim the ordinance was discriminatory.
“So, that eliminates any argument that I didn’t do it before. That public utilities have some innate right to condemnation,” said Wade. “This ordinance doesn’t just deal with oil pipelines, it deals with all utilities … electric, gas, wind, water, steam – all types of utilities that use pipelines.
“Therefore, I think it is more defensible. Because it is not singularly targeted, it can withstand an equal protection challenge, which there is case law in Tennessee and in federal courts where you target a particular industry. You have the burden of proving that is not discriminatory.”