Invited Essay: Pipelines, Protest, and Property

That land is a community is the basic concept of ecology, but that land is to be loved and respected is an extension of ethics. That land yields a cultural harvest is a fact long known, but latterly often forgotten.

—Aldo Leopold, A Sand County Almanac

Let us put our minds together and see what life we can make for our children.

—Chief Sitting Bull of the Hunkpapa Lakota, quoted in David Archambault II, "Taking a Stand at Standing Rock"

Introduction

At the end of 2016, more than 2.7 million miles of pipe carrying natural gas, crude oil, and other hazardous liquids crisscrossed the United States (PHMSA 2017). Most of these pipelines were built without major conflict. They required numerous government approvals and many, many property transfers of private rights-of-way to pipeline developers. These pipelines contribute to critical infrastructure for energy transmission and distribution, and pipeline proponents have declared the safety and efficiency of pipelines as compared to rail, highway, or other alternatives means of transport. Developers also cite a boost to local economies from new pipeline construction.

Meanwhile, technological changes in oil and gas production are creating new infrastructure demands as emerging production centers—largely in the northern Great Plains—need new pathways for transport (Klass and Meinhardt 2015). Now, this relatively conflict-free pattern of pipeline development seems to be changing. Two recent oil pipeline projects in the Great Plains—the Keystone XL Pipeline, intended to transport oil from Alberta to Nebraska, and the Dakota Access Pipeline ("DAPL"), currently operating between North Dakota and Illinois—have sparked unprecedented protests and resistance.

Many of the policy and legal disputes regarding these two particular pipelines are ongoing as this essay goes to press (in late summer 2017). Keystone XL still requires Nebraska approval prior to construction and is subject to other litigation. Oil is currently flowing through the DAPL pipeline, but its continued operation is subject to legal challenges as well. This essay does not attempt to resolve the important underlying substantive questions about whether these pipelines are the right infrastructure investment for present and future needs. These pipelines bring up difficult, multilayered challenges involving the US energy future, environmental and climate effects of fossil fuel dependence (especially fuels from oil sands and hydraulic fracturing), pipeline safety, national security, tribal sovereignty, and the economy. Without attempting to resolve these essential disputes, this essay instead seeks to situate the recent Keystone XL and DAPL resistance in a wider reflection about the meaning and significance of private property, especially as it relates to the future of the Great Plains.

Framing Private Property

Private land ownership predominates across much of the Great Plains. Stemming from its frontier history and pattern of homesteading development, private land ownership is a core feature of many Great Plains stories and identities. For many of us, private property symbolizes freedom, independence, and individual control. William Blackstone famously opined: "Property is that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe" (Ehrlich 1959, 113). Property, at least according to Blackstone, is the legal space where we can post a "Keep Out" sign to the rest of the world, enjoy perfect control over what happens within a bounded domain, and be totally free from everyone else in the universe.

Blackstone's simple vision of property hits some roadblocks in the complexity of the real world, but this common ethos of private property—with its primacy on the individual right to exclude outsiders from a private space—persists in both popular perceptions and legal theories (e.g., Merrill 1998). For example, under a Lockean labor theory, exclusive property ownership is our reward for and the product of hard work—an individual entitlement earned over time when we (or our ancestors) mixed our efforts (and our self) with an otherwise unowned thing. Property's exclusion is also valued for its protection of individual liberty. In this liberty-oriented theoretical...