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.

Ben Walker January 11, 2018

Activists in the fight against pipelines are using an unexpected tactic: employing religious freedom arguments. (Charles Mostoller/Bloomberg)

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.

"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.”

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.

Pro-earth creeds

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.

Land pro­tec­tors

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.

Rights denied

Hob­by Lob­bys 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[4] —“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.”

Ben Walk­er is writer and researcher based in Philadelphia.
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