Don Robinson: What’s at stake in pipeline proposal

Thursday, April 24, 2014
ASHFIELD — As town meeting time approaches, the hills of Franklin and Hampshire counties are alive with the sound of political action. Once more, the tiny town of Ashfield is at the epicenter of a violent shaking of democracy’s foundations.

The dispute centers on a plan by Kinder Morgan, a mega-corporation in the energy business (see its website to get a sense of the Goliath in this story) to build a pipeline through the Hilltowns. It’s got to go through our hills, we’re told; otherwise it would impact “congested areas.” The pipes would carry natural gas from fracked fields in Pennsylvania, up through New York State and Massachusetts, to depots in the eastern part of Commonwealth. From there some of it (not clear what proportion) would be distributed domestically, and the rest sold abroad.

The proposed pipeline would follow rights of way owned by electric utilities. How much ledge would have to be dynamited, how many trees cut down to build trenches for these pipes? What if the pipes leaked, and what if the electric lines sparked near a leaking pipe?

One landowner is an elderly widow. Her property, bisected by electric power lines, is up for sale. The money she had expected from this sale is what she has to live on for the rest of her life. When the project’s surveyors came to town, she was negotiating with a potential buyer. He has withdrawn his offer, citing reports of the planned pipeline.

Meanwhile another local owner is cooperating with the project. He argues that we must have fuel to produce electric energy, and natural gas pollutes less than other fossil fuels. He also would like to have the income that the company would pay to use his land.

This is not an unreasonable argument, but the clash is painful, pitting personal property rights against the power of a huge corporation and the authority of a government bent on promoting its conception of the general welfare.

Hilltown folks can be a bit cantankerous when modernity comes knocking on their door. Last year a plan to build windmills along a ridge near the center of town made many residents shudder. Some opposed the visual impact. Others cited the irritating flapping sound that huge windmills make, and the mess from installing and maintaining these devices. Supporters replied that wind power, whatever its annoyances, is better than coal or nukes. Local folks were ready for that one. It would be far better, they said, to reduce our reliance on electricity.

Where do these arguments leave us? The 5th Amendment to the U.S. Constitution points the way to one possible resolution. It incorporates the ancient doctrine of eminent domain, with two restrictions: any taking of private property must be for public use, and the owner of the property must be given just compensation. Note also that the government may delegate its power of eminent domain to private corporations, particularly public utilities.

In 2005, the U.S. Supreme Court confirmed the doctrine of eminent domain as a principle of American constitutionalism. It held that private property can be taken by a government entity (in that case, the city of New London, Conn.), even if the intention was to transfer it to a private developer, so long as the intended use would serve a public interest (increasing municipal revenues).

In the present case, the intention of the taking would presumably be to ship natural gas in support of the federal government’s domestic and foreign policies.

As this drama plays out over the coming months (and years?), leading actors will confront one another in a bewildering succession of arenas: at town meetings and ad hoc gatherings, in courts and legislatures, before municipal, state and federal agencies. One looming confrontation, for example, is a hearing before the Franklin Regional Council of Governments, scheduled for May 15 in Greenfield. Kinder Morgan has been invited to send a representative, but has not yet replied.

Watch what happens as this controversy over the gas pipelines unfolds. Is it about property rights or the national interest? Natural gas is the energy source of the moment: cheap (relatively), clean (relatively), and abundant (particularly if we accept fracking). The developers will contend that to stimulate the economy (jobs!), supply our friends (in Europe and Asia) and frustrate our enemies (Russia), we need to produce as much natural gas as we can.

Will these arguments overwhelm and drown out the voices representing environmental concerns and the plight of a widow trying to sell her property?

Don Robinson, a retired professor of government at Smith College, writes a regular column for the Gazette which appears on the fourth Thursday of the month. He can be emailed at drobinso@smith.edu.