Web Only / Features » January 11, 2018
In a Surprising Move, the Anti-Pipeline Movement Is Taking a Page from Hobby Lobby
Religious groups are using First Amendment arguments in efforts to stop pipelines and protect Native lands.
"Hobby Lobby opens the door for people, as a matter of religious belief, who believe that continued development of fossil fuels is destroying God’s creation.”
Before he died in 2017, Norman Hahn employed nearly 1,000 people as the owner of Conestoga Wood Specialties, a furniture manufacturer in Lancaster County, Penn. He was also a devout Old Order Mennonite. When Congress passed the Affordable Care Act in 2010, Hanh objected to the law’s requirement that he provide his employees with access to contraceptives. So he sued. Offering contraception would be “a sin against God to which I would be held accountable,” he claimed. In court, his lawyers argued that the requirement would substantially burden Hahn’s First Amendment right to the free exercise of religion.
The case, known as Burwell v. Hobby Lobby, would eventually make it all the way the Supreme Court. And in 2014, a majority of justices on the court agreed, ruling in Hahn’s favor.
Today, the court’s decision in the Hobby Lobby case is being used to argue for a very different type of religious protection. Opponents of natural gas pipelines on the East Coast are attempting to use the religious freedom argument to block expansion of fossil fuel infrastructure. With diminishing options to force change, and the clock to climate crisis ticking, how well this strategy can serve progressive ends hangs on which beliefs the courts say the First Amendment can protect.
Thirty miles down the road from Contestoga Wood’s Lancaster County factory, a 10-foot chain-link fence slices behind a modest outdoor chapel in the Columbia, Penn. A backhoe past the fence chaws up farmland soil, where the Atlantic Sunrise Pipeline, owned by Oklahoma-based energy company Williams Partners, may one day run.
The chapel, ringed by wooden benches open to the sky, sits on land belonging to the Adorers of the Blood of Chan, an order of Catholic nuns. In July, the sisters learned that Williams Partners, with the approval of the Federal Energy Regulatory Commision (FERC), would seize an acre of their land to build the pipeline. So the sisters built their chapel.
Sister Bernice Klostermann says that FERC has since stepped in to demand the Adorers sell the land the chapel sits on to the energy company. “We were asked to sell our land,” Sister Klostermann says. “Then we were told to sell it.”
The Adorers claim that this demand flies in the face of their beliefs. The nuns follow a Land Ethic, adopted in 2005, that espouses a religious obligation to “reverence Earth as a sanctuary where all life is protected.”
“We’ve always had a great veneration for the land,” Sister Klostermann says. “Earth is what keeps life going. If we ravage the Earth, which it seems like we’re doing, what’s going to be left for future generations?”
Once completed, the roughly 200-mile Atlantic Sunrise pipeline will rush gas from fractured shale rock in Northwestern Pennsylvania to Philadelphia refineries for export and consumption. Though natural gas emits carbon at half the rate of coal, drilling sites and pipelines leak methane, which is 34 times more potent than carbon dioxide at trapping heat.
To bolster climate change in this way would violate the Adorer’s religious ethic, the sisters say.
“The continued use of fossil fuels is causing irreparable damage to the environment,” the Adorers’ national office explains in a statement. “All of humanity have a moral responsibility to care for this planet, earth, our common home.”
To the north in Mahwah, N.J., leaders of the Ramapough Lenape Nation, a Native American community with an estimated 5,000 members, voice similar religious objections to expanding fossil fuel infrastructure.
“Indigenous people have always recognized our need for the world we’ve emerged from, the natural world,” says Owl, a tribal representative. “We’re at a time now where our cumulative historical impacts on the environment may lead to our own destruction as a species.”
Protests at Standing Rock inspired tribal leaders to oppose the Pilgrim Pipeline, which would ferry nearly 200,000 barrels of crude oil each day from Albany, N.Y, through Mahwah to Linden, N.J. A northbound pipeline would transport refined fuels.
If built, the Pilgrim Pipeline would cross hundreds of bodies of water and several aquifers servicing New York City. A spill could spoil the drinking water of millions of people.
To protest the pipeline, in October 2016, the Ramapough built teepees, tents and a single yurt on A 13.6-acre parcel of land they own that sits among multi-million dollar homes on the Ramapo River in Mahwah. They named it the Split Rock Sweetwater Prayer Camp.
To the Ramapough, the encampment was like most other prayer ceremonies held on the property in the last quarter-century, intended to honor and protect the land. The town of Mahwah, however, considered it a zoning violation.
Beginning in December 2016, Mahwah filed 43 zoning summonses against the Ramapough, with fines potentially totaling nearly $50,000. In November 2017, a judge ordered the Ramapough, who are not a federally recognized indigenous people, to pay $13,699 in fines. When the town claimed that the Ramapough failed to obtain the proper permits to build permanent structures on their property, the tribe applied for new permits. Mahwah officials denied this permit application in April 2017 and the Ramapough again found themselves in court.
Tribal members have claimed that the town’s intent is clear: to push the Ramapough off their land. “What started as a prayer camp to peacefully protest these pipelines has now turned into a fight for survival on our own land,” Ramapough Chief Dwayne Perry told Indian Country Today.
That’s because the prayer camp escalated decades of bad blood between the Ramapough and their wealthier, mostly white neighbors, many of whom reside in the Polo Club, a gated community next to tribal land. Centuries of displacement, dispossession and racial bias mar the Ramapough’s long history in Mahwah. Alleged zoning violations, the Ramapough say, mark the latest stage in this conflict.
Chief Perry argues that ratcheting up fines will force the Ramapough to sell off their land to developers.
“It’s another way to dispossess us,” Owl says.
Now the Adorers and the Ramapough are both in court to determine whether their pipeline protests are considered an exercise of the First Amendment right to religious freedom.
The Religious Freedom Restoration Act (RFRA), passed by Congress in 1993, prohibits the federal government from imposing a substantial burden on religious practice. RFRA applies to all federal law, shielding religious groups from regulations that apply to the general public. This includes everything from Christians who refuse to provide health care coverage that provides contraceptives to their employees—think Hobby Lobby—to Native Americans ingesting peyote for prayer ceremonies.
The Religious Land Use and Institutionalized Persons Act (RLUIPA), passed in 2000 to shore up RFRA's protection, safeguards religious groups from restrictive or discriminatory land-use regulations, like the use of zoning codes to block mosque construction.
The Hobby Lobby decision was a decisive win for the religious Right. The ruling ballooned RFRA’s applicability, permitting corporations as well as universities and nonprofits to widely discriminate on the basis of religious belief. It also places religious freedom protections well above other concerns.
By freeing a corporation’s religious beliefs from federal regulation, Hobby Lobby prioritizes the faith of employers over the rights and beliefs of their employees. As then-Solicitor General Donald B. Verilli, Jr. warned in 2014, few protections stand in the way of employers who sincerely believe that minimum wage laws or workers’ protections impose too high a burden on their religious practice.
Shortcuts around RFRA’s sweeping protections do exist, but they first must pass a string of imposing tests baked into law The federal government actually can burden religious freedom—but only if a law is determined to be the least restrictive way to serve a compelling state interest, such as national security or elections.
For the Adorers and the Ramapough, it remains to be seen how far RFRA’s protections can stretch.
In July 2017, the Adorers filed a complaint against FERC alleging that the agency had broken the law. By authorizing Williams Partners to seize the Adorers’ land for the Atlantic Sunrise Pipeline, the order argued, the federal government had placed a substantial burden on the Adorers’ religious beliefs.
“To me this is a no-brainer,” says Dwight Yoder, the Adorers’ lawyer. “Congress adopted a law protecting the nuns’ religious freedom; [Williams Partners] substantially burdened it. Hobby Lobby opens the door for people, as a matter of religious belief, who believe that continued development of fossil fuels is destroying God’s creation.”
In early October 2017, the town of Mahwah took the Ramapough to trial in New Jersey Superior Court over the tribe’s alleged zoning violations. But these violations masked a clear pretext for discrimination that burdened the Ramapough’s religious use of their land, the tribe’s lawyers argued. According to the Rampough’s lawyer Valeria Gheorghiu their neighbors at the Polo Club who have intervened in lawsuits alongside Mahwah, filed private citizen's summons against Chief Pery and Owl, and instigated their own lawsuits against the tribe.
“Operating at the behest of a privileged and influential group of citizens’ complaints is not a compelling governmental interest,” Gheorghui says.
But so far neither the Adorers nor the Ramapough have met much luck in court.
In September 2017, a federal judge dismissed the Adorer’s case. The sisters appealed, and a trial is likely to occur early this year.
In November 2017, a Superior Court judge ruled that the Ramapough did, in fact, violate existing zoning law. Lawyers for the Ramapough say they will appeal.
Hobby Lobby’s success is no guarantee for Native communities in court. When Donald Trump ordered the Army Corps of Engineers to expedite construction of the Dakota Access Pipeline shortly after taking office, Nicole Ducheneux immediately filed a preliminary injunction for her client, the Cheyenne River Sioux Tribe.
Pipeline construction, the tribe argued, would violate its rights as protected by the Religious Freedom Restoration Act.
“The mere existence of a crude oil pipeline under the waters of Lake Oahe”—a reservoir stretched between North and South Dakota that the tribe uses for religious purposes —“will desecrate those waters and render them unsuitable for use in their religious sacraments,” the filing read.
“Our feeling about ritually pure water should be considered to be exactly the same as a Jewish person’s right to have kosher food, or a Catholic person’s right to take the sacrament,” says Ducheneux, who is a member of the Cheyenne River Sioux Tribe.
“Our hope is to jump in and say: Hey, if Hobby Lobby can expand RFRA in the context of a major Western Religion, you can understand how that expanded context also applies to a Native religion.”
The injunction was denied.
The problem, Ducheneux says, is structural. “There is a judicial bias against us that derives from a mainstream cultural bias against our religious beliefs,” she says. “You see these traditions parodied as hocus-pocus, or as made-up crazy stuff—nature worshipping. It’s difficult to explain to someone who’s not Lakota what our religion means.”
RFRA’s shaky applications in these contexts doesn’t bode well for pipeline opposition elsewhere. That the protests of the Adorers and the Ramapough, independent of one another, should come to court on religious grounds, at roughly the same time, in roughly the same place, is no accident—and protests cut in the same mold run the same risks in the long term.
Lessons from Standing Rock
The model of the Standing Rock protests against the Dakota Access Pipeline, couched in long-standing indigenous belief and long-standing tactics of indigenous resistance, cast a strong pull over the Ramapough and Adorers. Native nations, environmentalists and activists flocked to Standing Rock in a stunning show of solidarity—including some of the Ramapough, and members of Lancaster Against Pipelines, a group of concerned neighbors who have sponsored protests with the Adorers.
What they learned, they brought back with them.
Standing Rock served as a powerful fusion of indigenous beliefs and indigenous tactics of resistance. What resulted was an encampment—a strategy long used by Native communities to fight off abuses—constructed in opposition to the Dakota Access Pipeline on spiritual grounds. Standing Rock’s spiritual perspective drew out the moral dimensions of resistance, protesting the legacy of colonial encroachment, extraction and exploitation.
The model spread. At least 21 camps inspired by Standing Rock endure today, including the Ramapough’s Split Rock Sweetwater Camp. Lancaster Against Pipelines maintained a camp on farmland in Conestoga Township from February to July 2017, when its owners sold out to Williams Partners for an undisclosed price.
But as the Standing Rock form of protest spread, so too did the techniques of policing, surveillance and intimidation waged against it.
In May 2017, State Sen. Scott Martin (R.) of Lancaster County met with North Dakota officials involved in policing Standing Rock, according to the Intercept. In August, Sen. Martin introduced a bill that would require anyone convicted of a crime at a public protest to shoulder the public safety costs tied to the event.
For Malinda Clatterbuck, a member of Lancaster Against Pipelines, Martin’s dealings appear in-step with a nation-wide effort to discredit and chill pipeline opposition through intimidation and trumped-up accusations of domestic terrorism.
“I live here, I’m a neighbor, I’m a resident,” Clatterbuck says. “What is this world, where people who exercise their Constitutional rights to civil disobedience are being called terrorists?” In October 2017, she was one of 23 arrested at a protest on the Adorers’ land.
That same month, 84 Congressional lawmakers sent a letter to Attorney General Jeff Sessions asking if pipeline opponents could be prosecuted on charges of domestic terrorism under the PATRIOT Act.
In August 2017 Energy Transfer Partners, owners of the proposed Dakota Access Pipeline, filed a sweeping complaint in U.S. District Court in North Dakota charging Standing Rock protesters of perpetrating terrorism.
“It’s a ridiculous charge, calling people terrorists who are trying to protect the future,” Marla Marcum, director of the Climate Disobedience Center, says. “We’ve got to stand behind people who are attacked that way.”
Protesters don’t have many options to fight these accusations. Republican capture of nearly every relevant political avenue has funneled the momentum of pipeline opposition to the courts, where arguments about religious freedom come up against the priorities of the War on Terror. So broad and ambiguous is the “terrorism” defined by the PATRIOT Act that it loops in much of the innocuous, day-to-day aspects of any kind of activist movement. Section 802 of the Act defines domestic terrorism as any illegal act “dangerous to human life” that intends “to influence the policy of the government by intimidation or coercion.” Such language could apply to most forms of protest and civil disobedience.
The RFRA offers pipeline protesters no firm protection against these charges. Even if protesters’ beliefs are sincere, governmental interests in security are likely to win out.
But legal systems are unpredictable. Ted Hamilton, co-founder of the Climate Defense Project, says, “You never know what’s going to stick. You really could get one decision from the bench that totally halts pipeline construction forever.”
Hobby Lobby opened a door. It remains to be seen where it will lead.
“We’ve survived to this point,” Owl says. “We’ll find a way to survive in the future.”
Or as Sister Klostermann puts it, “Miracles have happened before.”
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Ben Walker is writer and researcher based in Philadelphia.
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