Indigenous Activists Take Atlantic Coast Pipeline To Court

Indigenous Peoples Case Filed In Robeson County, NC Could Hamstring A Monster Pipeline

This week in a small remote corner of North Carolina, two mega fossil fuel corporations, Duke and Dominion, may have met their match. In the Robeson County Courthouse in Lumberton Lumbee and Tuscarora neighbors of a proposed metering and regulation(M&R) station (including a 350-foot radio tower) and a compressor station (which already exists)  challenged their County Commissioners’ permitting of these projects.

Neighbors, Activists and Attorneys outside Robeson County Courthouse.

Because these facilities are essential to the construction of  Atlantic Coast Pipeline, they were also taking on the corporate owners of the ACP: Duke Energy, which as the largest utility in the country operates in seven states, and Dominion Resources, Virginia’s huge energy company which has recently moved aggressively into North and South Carolina. For years now Duke and Dominion have been using their enormous wealth, power, campaign contributions, philanthropic arms, and when needed, bullying tactics, to make sure public opposition to the ACP is defeated.
In this Robeson County David and Goliath Superior Court case, faced with a scrappy group of Indians, the tables may have turned. If the Lumbee and Tuscarora win in court, it’s possible the ACP might have to abandon their plans for this part of NC. Or given the spate of recent expensive setbacks elsewhere to the ACP, maybe they will have to abandon the entire project.  The lawyers for both sides have another three weeks to submit additional arguments, and Judge Mary Ann Tally will make her decision sometime after that.
The native people’s challenge resulted from the fact that two years ago the high paid attorneys of Dominion, Duke and the ACP, as they have done elsewhere, railroaded the ACP’s application for a conditional land use permit through the Robeson County Commissioners. Having for years been furiously lobbied by the ACP, and impressed by the ACP’s promises of large property tax revenues, the Commissioners voted unanimously in 2017 to approve the permit.
On Tuesday in Court, Sean Cecil, the lawyer for the Lumbee and Tuscarora plaintiffs, argued persuasively that the Commissioners had failed to hold what should have been a quasi-judicial hearing about the permit application. In this hearing the public should have been entitled to hear sworn detailed expert testimony and should have been able to cross-examine the experts as well as inspect and question the documents submitted by the ACP. According to Attorney Cecil none of this happened, since the public was poorly informed about the timing and process of the Commissioner’s decision, and the ACP submitted hundreds of pages of “unidentified” documents which would have been almost impossible to sort through, understand and digest.
Attorney Cecil said that the Commissioners in their discussions of the permitting were more concerned with the $6.5 million in tax revenue than in due process. In addition, Attorney Cecil argued that this ACP project in several crucial respects did not meet the conditions established by law under which the Commissioners could legally grant a conditional land use permit.  By law, such a permit can be granted only if it does not degrade the health, safety, comfort, property values and the general welfare of those who live nearby.
Duke, Dominion, and the ACP did not provide that type of information. In fact, the local fire chief, Landon Moore, was asked what he could do in the event of an accident involving the ACP’s 1.5 billion cubic feet of fracked gas a day that would be dumped on his fire district at the tail end of the 600 miles long 36″ pipeline. Chief Moore was clear that his department had neither personnel nor the training or equipment needed to protect the community in the event of an accident. Also, Attorney Cecil challenged the permit to build the 350-foot radio tower, since Robeson County zoning stipulates a maximum height of 199 feet for such structures.
In the past, in important fights like this one, where small communities have been confronted with large corporate infrastructure, the local people involved have often been intimidated, threatened, assaulted and even murdered. This is true all over the country in cases involving people of color, and especially Indigenous Peoples. While there is no evidence of threats like this having happened in this case, the first judge assigned to the case withdrew. Because this case is so politically charged and involved attempts by very wealthy and powerful utilities to force their dangerous and toxic project onto an Indigenous community, the local Robeson County judge, Judge Bell, who had been assigned to hear this case, came into court on March 18 and announced he was withdrawing. Judge Mary Ann Tally from Cumberland County was then assigned, and the case was heard the following day.
What unfolded in the courtroom on March 19 had the drama of a Hollywood movie about a David and Goliath fight. Attorney Sean Cecil, the youngest person of the 20 or so people in the courtroom, and of the paid people there, probably among the lowest paid, spent two hours in the morning laying out for the judge the detailed and complicated facts of the case, its history, the facts about the Atlantic Coast Pipeline’s Robeson County project, and the laws governing Commissioners’ decisions and the granting of a conditional land use permit. This was a phenomenal undertaking, which had taken him months to prepare. I for one was awestruck by his ability to lay out the facts of the process and land use in a clear and persuasive fashion – and with his humor. Towards the end of the day, Attorney Cecil claimed that the high paid attorneys for Duke, Dominion and the County operated in the court much like his six-year-old daughter when playing board games.. “Your  honor,” he said to Judge Tally, “these attorneys keep changing the rules when it looks to them like they may lose.”
With the exception of County Attorney Locklear, who is Lumbee and made only one short comment the whole time, the five attorneys representing Duke, Dominion, the ACP and the County Commissioners , dressed in their expensive suits and their carefully manicured hair, looked in some ways like the epitome of the same kind of white male power and privilege which has been used in this country throughout its history to subjugate and marginalize people of color and Indigenous Peoples.
In fact, Attorney Herman, who had been hired by the Commissioners to defend the indefensible, used his time and his good old boy personality to lecture the (female) Judge about her responsibilities to the court. “You know, your honor, your job is to. .  . . .” ” Blahdidy, blahdidy, blahdidy.” He seemed more concerned to tell the judge how to do her job than about the facts of this case.  Attorney Kitchin of the Corporate Law firm McGuire Woods, which is Duke’s go-to law firm, was somewhat more restrained in his mansplaining, but nevertheless argued against giving Attorney Cecil adequate time which Cecil said he needed to prepare additional submissions to the judge for the case.
Fortunately, Judge Tally, who used to be a public defender and may understand the huge imbalance of power, privilege and wealth in this case, and who was likely put off by the defense team’s patriarchal arrogance, gave everyone almost a month.

On display in this small courtroom in one of the poorest corners in North Carolina was an attempt by the rich and powerful corporate system to perpetuate their domination of the lives of the rest of us, especially the  42% Lumbee, Tuscarora and other Indigenous Peoples, and the 24% African American, and the 9% Latino who live in Robeson County. What was also playing out is the fierce determination of those peoples to stand up and fight back for environmental justice and an end to the fossil fuel infrastructures which endanger both their community directly and the entire planet through climate change.  Since this case has ramifications way beyond Robeson County, it seems to me we owe them all a huge debt of gratitude. 

 
REQUEST FOR DONATIONS SUPPORT TO SUPPORT THE INDIGENOUS PEOPLES CHALLENGE TO DUKE, DOMINION AND THE ACP.: Many people have asked what they can do to support important community struggles for environmental justice, for community control and for a rapid transition away from fossil fuels and toward renewable energy.
APPPL (the Alliance to Protect the People and Places We Live) has for the last year or more been raising money to pay the legal expenses of for this case. Regardless of how Judge Tally decides this case, an appeal of some kind by whoever loses is very likely. The Lumbee and Tuscarora will need these funds to pay for legal representation. 
Please consider donating through APPPL’s GoFundMe page on our web site. https://www.apppl.org/