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Winning Against the Odds

Race-Conscious Community Lawyering and Organizing for Environmental Justice

By Colin Bailey

In 2007 a private, for-profit corporation quietly filed an application with the California Public Utilities Commission to construct and operate an underground natural gas storage facility. The developer, Sacramento Natural Gas Storage LLC, sought to pump and store eight billion cubic feet of natural gas in a preexisting geological formation directly beneath about seven hundred households in a historic, low-income community of color at the southeastern edge of Sacramento. The project would have given the Sacramento Municipal Utility District a thirty-day supply of natural gas to fuel its electric power plants in the event of a major disruption in the gas supply or peak energy demand outpacing the supply. It also would have allowed the utility district to hedge against the market: buy low, sell (or use) high. While the developer asserted that such projects were unquestionably safe, it would have been the first of its kind in a preexisting, densely residential neighborhood.

When the project went public, the neighborhood association for the project area, the Avondale Glen Elder Neighborhood Association (AGENA), got engaged. In July 2012, five years, two governors, three utilities commissioners, over $1.5 million in attorney time, and countless community meetings later, in a hearing that unfolded like theater, the five-member California Public Utilities Commission voted 3-to-2 to deny the permit. This was an outcome most observers—even those of us who had worked so hard for it—considered a long shot. Due to the community’s involvement, the state utilities commission concluded that the project posed an unjustifiably high risk of harm to the health and safety of the people living above it. The project posed significant, specific risks that gas could leak from the underground reservoir, contaminate the community’s drinking water, and accumulate under the streets, homes, schools, and businesses above, where it could cause a massive explosion and fire.

What follows is the story of how a small African American neighborhood association engaged outside resources, including, first and foremost, the local legal aid office, to build power and political influence through community organizing, coalition building, a savvy media campaign, and administrative, political, and legislative advocacy, to achieve victory and set an example for any community where underground natural gas storage facilities are proposed.

Selling Product: The Public Relations Campaign

After filing its application with the California Public Utilities Commission, Sacramento Natural Gas Storage began promoting its product. It hired local counsel, a utilities commission specialist, a well-connected local public relations firm, what seemed like every lobbyist or consultant who held sway with local elected officials, scientific experts whose opinions supported the company’s talking points, and a team of leasing agents, among them the former head of the local neighborhood association, whose job it was to induce homeowners to sign a contract to lease their underground storage rights to the company.

Sacramento Natural Gas Storage sought the endorsement by Kevin McCarty, a Sacramento City Council member, of its project at the outset because it was proposed in his council district. To his great credit, McCarty directed the company to the local neighborhood association, AGENA, which he indicated would take the lead in vetting the project. Taking the cue, Sacramento Natural Gas Storage approached AGENA.

The Avondale Glen Elder Neighborhood Association: A Community Voice

Both the membership and the leadership of AGENA were in transition. AGENA was just starting to gain its own identity after being formed from the merger of two long-standing associations from the Avondale and Glen Elder neighborhoods. AGENA's head having left his position to work for Sacramento Natural Gas Storage, two young African American residents, Constance Slider (now Slider Pierre) and Jermain Gill, stepped forward to lead AGENA.

Only a few months into her new position, Slider Pierre got the call from Sacramento Natural Gas Storage: It planned to make a big investment in her neighborhood and wanted to talk about the money it would contribute to the community. At first, Slider Pierre was excited about the economic development opportunity that the gas storage project presented. If the community were to take full advantage of this opportunity, however, she knew she would need legal representation.

Legal Services of Northern California: The Community’s Law Firm

A friend who worked in community economic development referred Slider Pierre to Legal Services of Northern California. She spoke to Bill Kennedy, the managing attorney of the Sacramento office and my supervisor, who in turn referred her to me. She asked me to attend a community meeting that had something to do with natural gas, but nobody was really sure what it was yet. Encouraged by Legal Services of Northern California’s express expectation to spend approximately 10 percent of each week cultivating relationships in client communities outside the office, I gathered my law student intern, and we made our way to a south Sacramento meeting hall.

More than a hundred people attended the meeting. Sacramento Natural Gas Storage’s public relations firm showed several glossy computer models of the proposed facility, paraded out the former fire chief to endorse the project’s safety, and made clear that gas had accumulated underground there before as the result of natural processes; the company would simply put it back again. The meeting was carefully orchestrated to dispel and distract from any concerns.

Moreover, despite McCarty’s request to the contrary, the company announced with great fanfare the amount of money it planned to donate to a new community foundation (roughly $42,000 annually) and how much each homeowner would receive for signing a storage lease (a $500 signing bonus and then $500 per year of operation thereafter). Sacramento Natural Gas Storage indicated that AGENA could expect a seat on the new foundation’s governing board.

Some people thought the money sounded good. Others thought it sounded like too little. AGENA thought this was just the type of debate for which they needed an attorney.

Community Benefits Agreement: A Project to Lift Up the Neighborhood?

Slider Pierre and I talked to Legal Services of Northern California’s volunteer transactional attorney about what we would need to do to create a new community organization. These discussions being promising, AGENA retained us to help negotiate a community benefits agreement. If all went well in negotiating a sufficiently higher sum, we planned to launch a community nonprofit service agency within the year and began drafting its formation documents and an ambitious agreement with Sacramento Natural Gas Storage.

Simultaneously we began researching the science of natural gas storage and looked at maps of where other natural gas storage facilities were located. A pattern emerged: Sacramento Natural Gas Storage’s project would have been the first to be located beneath a preexisting, densely residential area. Thus one question kept popping up: Is it safe?

The Question of Safety: Seeing and Believing

To understand the proposal better, we asked the company to show us a storage facility similar to the one it proposed, preferably one operating in an urban area. Only one such facility could be found in California: the Playa del Rey storage facility. The company arranged for a field trip, which Slider Pierre and I attended along with several members of the city of Sacramento’s staff. The city’s staff would oversee the company’s permit application with the city, which was secondary to the application the company filed with the California Public Utilities Commission.

In researching the Playa del Rey facility ahead of time, we discovered that a statewide environmental law group had sued it for groundwater contamination allegedly caused by gas that had escaped from the storage reservoir. If gas could escape and contaminate the water in Playa del Rey, one of southern California’s more well-to-do communities, it could do so in south Sacramento. Alarmed, we expanded the agenda for our visit to the Playa del Rey facility.

The environmental lawyers put us in contact with the local environmental activists, who, in turn, put us in contact with experts in the field of petroleum geology and natural gas storage. Because these people were expressly denied permission to set foot on the Playa del Rey facility’s grounds, we met in private, at the conclusion of our highly scripted tour, with the people whom we would soon find out were the Playa del Rey facility’s arch nemeses.

They warned us of the potential for both groundwater contamination and, worse, devastating fires and explosions. They gave us scientific studies that had eluded our earlier search, a petroleum geology and engineering textbook (one of the authors of which would later become our primary scientific expert), California Public Utilities Commission records of other storage projects gone awry, and more. They showed us a steady stream of gas bubbling up through the brackish water in the wetlands above the Playa del Rey facility. They said this was gas migrating from the facility’s reservoir. Our thoughts about the risks versus the benefits of the gas storage proposal in Sacramento were beginning to shift.

We went back a second time and met with the chief fire inspector for the city of Los Angeles. His job was to monitor all of the safety mechanisms in the housing development that had been built above the Playa del Rey storage facility. The new housing had been fitted with impermeable membranes beneath the foundation and vents to prevent gas from accumulating in explosive concentrations in residents’ basements. Electronic monitors were installed to alert the residents and the fire department if gas concentrations did reach dangerous levels. Notwithstanding their questionable efficacy, these were measures, the fire inspector assured us, that would be impractical to implement in a preexisting neighborhood such as Avondale Glen Elder. When asked directly, his opinion was that no natural gas storage facility should be built in a densely residential neighborhood. It just was not safe.

All of a sudden, the community’s safety became the most important issue. We shelved the community benefits agreement and filed for party status in the California Public Utilities Commission permit proceeding.

Paradigm Shift: From Cooption to Opposition

Transitioning from negotiating a community benefits agreement to opposing a multimillion dollar natural gas corporation, we had been warned, would require tremendous resources, expertise, and probably many years. After discussing the issue within Legal Services of Northern California, we decided that we could not do it alone but that we alone were situated to do the right thing. AGENA voted to oppose the project, and we filed its opposition with the California Public Utilities Commission.

The year was late 2007, and signs that the economy was in free fall were impossible to ignore. At this time Sacramento Natural Gas Storage hired throngs of mostly college-age leasing agents to peddle its leases throughout the neighborhood, offering homeowners a $500 signing bonus, a $50 gas card, and a $50 grocery gift certificate to sign its storage contract. Many in the neighborhood were happy to have the money. In response, AGENA began a door-to-door information campaign to encourage homeowners not to sign leases until the utilities commission had completed its environmental review of the project and the effects were better known.

The ground war had begun.

The California Public Utilities Commission: Reflecting the Politics of the Time

When this case began, George W. Bush was president and Arnold Schwarzenegger was governor and had just appointed several new utilities commissioners who were widely considered to be favorable to big business and industry. We assumed, as a legal strategy, that the California Public Utilities Commission was a lost cause and that our task was to make a strong administrative record from which to appeal the utilities commission’s decision. We hoped an appeal would set up the battle to get the city to deny the company’s permits or get the Sacramento Municipal Utility District to withdraw from its contract with Sacramento Natural Gas Storage. In the worst-case scenario, an appeal would create leverage to negotiate some benefit for the community.

We would need help for this.

Evolution of the Team: Mapping Our Contacts

We realized early on that we had no road map for how to conduct a campaign like this. Based on the novelty of the project, fighting it would prove to be unfamiliar, if not uncharted, territory. Yet it was a classic case of multiforum advocacy, and we knew we would have to advocate competently in each forum to avoid getting outmaneuvered by our opponents.

Slider Pierre and I began building a team. Facilitated by preexisting relationships with colleagues at Legal Services of Northern California, we brought on as cocounsel Tina Thomas and her new associate, Chris Butcher. Besides being a specialist in the California Environmental Quality Act, the body of law governing the environmental review portion of the utilities commission’s permit proceeding, and the attorney to most of the major developers in the area, Thomas was widely regarded as one of the most influential people in Sacramento politics. Between Thomas and Slider Pierre, whose father was a mentor to Darrel Steinberg, now state senate pro tempore, early in his political career, our connections to people in positions of power were formidable.

We began routine meetings with McCarty, his district director, the city attorney, and the deputy city attorney. Since the city was also a party to the proceeding before the utilities commission, these meetings became important for sharing information and strategy points and influencing the city’s approach to the project. Through connections in McCarty’s office, AGENA was able to retain a pro bono lobbyist who had connections to and influence with key state legislators.

We were aided tremendously by Bob Finkelstein, a senior attorney with The Utility Reform Network (TURN) in San Francisco; he had practiced for twenty years before the utilities commission. Legal Services of Northern California committed additional resources to the case. My colleagues Sarah Ropelato and Stephen Goldberg joined the legal team in 2008 as the discovery and evidentiary hearing phases of the proceeding were gearing up.

Throughout the course of the five-year campaign, we would bring on three additional private, pro bono cocounsel to aid in various stages in the utilities commission proceeding. The community’s struggle was so compelling and the reaction to the danger they faced so visceral that we had no trouble finding additional team members.

The Experts: Keys to Building Our Case

The major legal issues included whether the environmental impact of the project could be made less than significant and, if not, whether there were feasible alternatives to the proposed project location that were environmentally superior; whether the need for the project justified approving the permit, notwithstanding any significant risks; and whether the project was in keeping with “community values” and other statutory factors (see Cal. Pub. Util. Code § 1002 (West 2012); California Public Utilities Commission, Proceeding Information Search (n.d.), (searchable database containing documents from this proceeding)). The issues being highly technical and scientific, we had to find people who knew them well and had both the credentials and gumption to testify before the California Public Utilities Commission.

My colleagues and I scoured the scientific and popular literature on natural gas storage and began cold-calling authors and any experts cited in the text. We were most successful with retired or semiretired experts. Chief among them was Dr. John Robertson, a petroleum engineer with a background in geology; he doubted that natural gas storage facilities should ever be located in densely residential areas. He later made the scientific case that the proposed gas reservoir was too dangerous, due to the potential for gas to escape through inferred fractures and fissures in the cap rock, including a fault. His testimony, combined with that of several other experts, contributed to the utilities commission’s finding in the Environmental Impact Report that the project posed significant risks of harm to the environment and the community.

By searching course listings at California universities, I was able to retain Robert Bremault, an engineer with a business degree; as an energy market expert working for Sacramento Municipal Utility District, he had been part of the district’s early meetings with Sacramento Natural Gas Storage. He was uniquely positioned to offer his expert opinion that, while convenient, Sacramento Municipal Utility District did not need the gas storage project to meet its customers’ peak energy demand.

Throughout the campaign, we benefitted from the advice and testimony of a dozen expert consultants and witnesses, who put substantial evidence into the record to support the California Public Utilities Commission’s final decision. Mercifully, our experts agreed to wait to be compensated until AGENA was able to seek compensation, pursuant to the California Public Utilities Commission’s intervenor-compensation program, for having made a “substantial contribution” to the commission’s final decision. A grant from The Impact Fund covered initial expert costs and fees.

Community Organizing: Building Strength One Person at a Time

As a former labor organizer who grew up in the very community she now sought to organize, Slider Pierre used her relationships to recruit, train, and mobilize other leaders from the community. On numerous occasions, with Slider Pierre leading the call to action, community and coalition members turned out to broadcast their opposition to the project before the California Public Utilities Commission, Sacramento Municipal Utility District, key local politicos on the city council and in the state legislature, and the local and regional media. The community was divided among a group of project supporters, who proclaimed the project safe, despite the utilities commission’s findings to the contrary; those who simply wanted the money and other perks the company had promised; and the community coalition, anchored by AGENA, which prioritized safety above all. The people whom Slider Pierre had organized stood out for being well informed and on message.

The Coalition: Ever Bigger, Ever Stronger

When we thought our chances for success were best in the local forums—the city council, the Sacramento Municipal Utilities District board, and local media—we recruited coalition members who could best influence those players. But when the California Public Utilities Commission started to look like the most favorable forum, we reached out to groups with statewide clout.

Some of the latest additions to the coalition turned out to be some of the most influential. As the California Public Utilities Commission neared a vote on the permit application, the Equal Justice Society, led by Eva Patterson, helped mobilize many civil rights and environmental and racial justice advocacy organizations to lobby the commission to deny the project and protect the neighborhood. AGENA’s struggle became emblematic of a larger set of racial and environmental justice principles, including the very nature of democratic accountability. Michael Florio, a public utilities commissioner, was particularly impressed that Patterson, for whom he publicly stated his utmost admiration, personally conveyed her support for AGENA to him. Similarly, where AGENA and others had failed to get an audience with Mark Ferron, a commissioner, who, with Catherine Sandoval, a commissioner, was one of the two “swing” voters, the Greenlining Institute was able to get a personal meeting with Ferron and conveyed a brilliantly crafted message immediately before the final hearing.

Legislative Advocacy: Political Ping-Pong

With AGENA’s lobbyist taking the lead, AGENA’s team engaged in a game of legislative ping-pong whereby AGENA and Sacramento Natural Gas Storage would alternate in finding a sympathetic legislator to sponsor a bill to change the rules of the administrative proceeding as it was in progress. The company had Schwarzenegger’s ear, so California’s most powerful politician vetoed AGENA’s bills. Steinberg supported AGENA, so California’s second most powerful politician stymied the company’s bills in committee. While this strategy proved ineffective in changing the law, it did educate and engage some legislators who later became influential in the matter.

Game Changers: Nudging Open the Door to Victory

Winning at the California Public Utilities Commission was always a long shot. But we had positioned ourselves so that we could take advantage of several game-changing events that helped us secure this narrow victory.

Our first break was getting the commission to undertake a full-scope environmental impact report, despite the company’s assertion that, after putting a few mitigation measures into place, the effects of its project on the environment would not be significantly adverse.

Our second milestone occurred a year and a half later when the utilities commission released the findings in its draft environmental impact report, identifying several potentially adverse and unavoidable effects on the environment and health and safety of the community. Despite the company’s efforts to have these findings reversed, the final environmental impact report maintained that the project posed significant danger that gas could migrate from the reservoir, contaminate the groundwater, and cause fire and an explosion in the neighborhood above (see California Public Utilities Commission, Sacramento Natural Gas Storage Project, Vol. 2: Final Environmental Impact Report). The significant effects identified in the report meant that, as a legal matter, to approve the project the commission would have to determine that the need for the project outweighed the risks (see Cal. Pub. Res. Code § 21081 (West 2012); Cal. Code Regs. tit. 14, §§ 15043, 15093 (2012)). While the probability of gas migration was low, the magnitude of the potential harm was unthinkably high. Not long after the release of the draft environmental impact report, Steinberg sent from his office to the California Public Utilities Commission the first of two letters outlining his concerns with the draft report’s methodology and legal adequacy and expressing concern with the significant effects identified therein.

Third, tragically, in September 2010, a natural gas pipeline owned by Pacific Gas and Electric exploded, killing eight people and destroying an upscale neighborhood in San Bruno, barely twelve miles south of the commission’s San Francisco headquarters. California legislators responded by requiring the commission to make the safety of the public and workers its “top priority” (see Cal. Pub. Util. Code § 963(b)(3) (West 2012)). This change in the law was factored prominently in the commission’s final decision on the Sacramento Natural Gas Storage permit application.

Fourth, some months after Jerry Brown assumed the office of governor in January 2011, he appointed three new commissioners to the five-member California Public Utilities Commission; one of them was Florio, a longtime senior attorney with our ally Finkelstein of TURN. Florio was perhaps the greatest consumer advocate that the commission had ever seen. He ultimately authored the final decision denying the permit application.

Fifth, a few weeks before the commission’s final vote, and after several discussions with Ginger Rutland, a senior journalist and associate editor of the Sacramento Bee, the newspaper published an editorial recommending denial of the project. After putting Rutland in touch with a local sociologist whose research helped us craft our story line, Rutland followed up the Bee’s editorial with an in-depth article linking the racial history of the Avondale Glen Elder neighborhood to the current prevalence of environmental hazards in the community. The article demonstrated that the gas-storage project was just the latest episode in this story of racial injustice.

Not long thereafter, Steinberg sent to the California Public Utilities Commission a second letter characterizing the proposed project as an environmental justice issue. In the world of politics, these high-profile endorsements were golden and undoubtedly emboldened the three new commissioners to exercise their better judgment and deny the project. To his credit, despite considerable pressure to put his weight behind the project, Brown allowed his appointees to make their own best decisions.

Institutional and Community Change: Challenges that Make Us Stronger

During this five-year campaign, a core group of community members demonstrated their ingenuity, endurance, and capacity to get results. AGENA cultivated several new leaders who have risen to prominence in their community, established relationships with local and statewide allies, and strengthened its relationship with its elected representatives.

Understanding that its victory over Sacramento Natural Gas Storage was double-sided in that it prevented the imposition of a hazardous land use at the expense of additional financial resources for the community, AGENA now aims to engage in community economic development and planning proactively. To ensure that its needs are met and the community’s assets recognized, preserved, and built upon, AGENA is engaged in a community-organizing project to advance equity and justice in marginalized communities throughout the Sacramento region. Far from self-satisfied with their victory, AGENA’s young leaders see possibilities for their neighborhood to be transformed into the prosperous, well-functioning, integrated, and equitable community it very much wants to be.

Lessons Learned: A Few Things that Worked for Us

  • Have faith in one another. The strength of the relationships you build is key to success.
  • Focus on communication among advocates. Designate a lead person for each of the multiple prongs of advocacy.
  • Use a document management system, and keep organized.
  • Bring the client along with you every step of the way. Give the client regular updates; doing so will improve your relationship and build the client’s capacity.
  • Have fun. These close attorney-community relationships need joy. Celebrate victories, especially the small ones.
  • Find allies. Doing so will build your own capacity as well as that of the community.
  • Anticipate division. Developers seeking to impose a potentially hazardous land use on a community desperate for jobs and investment often engage in “divide and conquer” strategies. Prepare your clients to be pilloried, and help them fight back.
  • Keep powerful adversaries silent or at bay. Coalition building was a bit like organizational chess: trying to recruit and mobilize organizations to our side, while neutralizing other hostile organizations.
  • Support client capacity building. Engage community groups early on in a review of their bylaws or governance procedures and the importance of following them and documenting that they have done so. The company attempted more than once to knock AGENA out of the proceeding by attacking its standing to be there. First, the company moved to limit the degree to which AGENA could claim to represent the community as a whole. Second, the company argued that AGENA lacked standing by virtue of allegedly having failed to follow its own bylaws in voting to oppose the gas-storage project. These efforts failed to deal a knockout blow to AGENA, but community groups, especially unincorporated associations, often operate without attorney-like attention to process.
  • Build enough capacity in your client community and your legal team to be able to handle transitions in key personnel. Life happens. Among the core AGENA team, several of us got married and had children during the five-year campaign.
  • Get your experts early. Once we declared our opposition to the project, our opponent seemed to try to buy up every natural gas storage expert in the state. Luckily we were just far enough ahead of the company to get the job done.
  • Do not be discouraged from taking on an unfamiliar fight for lack of a plan. You and your allies are resourceful and creative, and you can do it. After all, in our field, we are the backstop. If we do not take up the cause, who will? And who knows what circumstances might change and make the impossible possible?

Author’s Acknowledgments

This story is dedicated in equal measure to the late, great Luke Cole, who served as the environmental justice expert on this campaign until his untimely passing in 2009, and the members of the Avondale and Glen Elder community and their allies, who successfully developed and wielded their latent power as Luke’s bold vision for justice exhorted them to do.

I am grateful to Legal Services of Northern California, my colleagues Sarah Ropelato and Stephen Goldberg, cocounsel Chris Butcher and Tina Thomas, and client Constance Slider Pierre, whose extraordinary collective effort made this task possible. Most especially, I am grateful to my former supervising attorney, Bill Kennedy, for seeing fit to put this case in my hands, just barely two years out of law school, and then giving me the space to take this campaign in its many necessary directions.

Colin Bailey

Colin Bailey
Executive Director
Environmental Justice Coalition for Water
P.O. Box 188911
Sacramento, CA 95818-8911

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