Suit filed over pipeline

Last modified: Saturday, August 01, 2015
DEERFIELD — A group of Franklin County residents whose property would be crossed by the proposed Kinder Morgan natural gas pipeline has filed a civil lawsuit against the federal government in U.S. District Court in Springfield.

The lawsuit, filed Tuesday, asks the government to halt all activity of any federal agency related to approval of the pipeline project and argues that a related 2005 amendment to the federal Natural Gas Act is unconstitutional.

It claims that the plaintiffs — Holly and Gordon Lovelace of Northfield, Eric and Carolyn Ness of Deerfield, Kelly and Michael Paulsen of Plainfield, Woolman Hill Inc., a Deerfield Quaker retreat center, and Meg Worcester of Deerfield — have been harmed by the proposed project through decreases in the value of their property and equity of their homes, economic hardship, and emotional anguish.

They are being represented by Cristobal Bonifaz, a lawyer from Conway,

The lawsuit claims that the 2005 change, which gave the Federal Energy Regulatory Commission the authority to regulate the exportation of natural gas, is unconstitutional because it allows for the taking of private property for projects that transport natural gas for export.

Prior to the 2005 amendment, federal law only granted FERC jurisdiction over interstate pipeline commerce within the United States, but the amendment expanded coverage to include “the importation or exportation of natural gas in foreign commerce and persons engaged in such importation or exportation.”

The lawsuit claims that this violates the “just compensation clause” of the Fifth Amendment to the Constitution, which gives the federal government the power to take private property for public use as long as the owner is adequately compensated, a process known as eminent domain.

FERC can give private companies supplying natural gas and hydropower “certificates of public convenience and necessity,” which allow them to use eminent domain as a last resort if the landowners and the developer can’t come to an agreement. Kinder Morgan, TGP’s parent company, plans to apply for such a permit later this year.

“Congress’ assertion of public interest in its amendment to the Natural Gas Act of 2005 was not only baseless but highly premature,” the lawsuit reads, referring to two letters by two separate groups of senators, which argue both for and against exporting natural gas as being in the public interest.

The lawsuit argues that exporting natural gas does not qualify as public use, nor does it contribute to the public interest because it depletes a national resource and contributes to climate change.

“FERC is about to approve the installation of a gas pipeline ... destroying the value of the plaintiffs’ properties, while this pipeline cannot be considered, under any definition of the term, to be for public use since it is only going to transport less than 30 percent of the gas for use within the United States,” the suit reads.

That analysis is based on a report by David Gilbert Keith, included in the filing, in which he concludes that most of the gas will be likely be liquefied and exported. Gilbert, in turn, based his findings on an analysis of data from the federal Energy Information Agency.

Further, the suit argues, trade benefits from exporting gas do not justify eminent domain takings.

“Once trade benefit is accepted as a ‘public use,’ Congress could allow the taking of virtually any private property that could more profitably be marketed abroad, which taking might improve the economy of the United States,” the suit reads.

The lawsuit also asks for the plaintiffs to be awarded litigation costs and attorney’s fees related to the case. According to court records, the case has been assigned to Judge Michael A. Ponsor.

Bonifaz’s efforts

Bonifaz has been active on the pipeline issue since the fall of 2014, when he offered to represent the town of Deerfield pro bono as it fought to keep the pipeline from passing through its borders.

In October, the Board of Health, under Bonifaz’s advice, voted to ban any activities related to the project from taking place within its limits under the state’s “noisome trade” law, and in December the Select Board, which doubles as the health board, asked Rep. Stephen Kulik, D-Worthington, to introduce legislation that would provide royalties on any of the gas traveling the line that is sold overseas to landowners whose property is taken by eminent domain during the construction process.

Kinder Morgan later rejected the ban, calling it a “nullity.” Kulik later introduced the legislation at the state level.

Construction of the pipeline, which would pass through Ashfield, Conway, Shelburne, Deerfield, Montague, Erving, Northfield and Warwick in Franklin County and the Hampshire County town of Plainfield on its way from Wright, N.Y., to Dracut, north of Lowell, is slated to begin in April 2017. It would begin operating in November 2018.

The project would include a compressor station on 10 acres of a 156.3-acre Gulf Road parcel in Northfield. The 30-inch diameter pipeline was recently scaled back from 36 inches to carry about 1.3 billion cubic feet of natural gas per day, down from the 2.2 billion cubic feet initially proposed.

FERC is currently holding a series of hearings to determine the scope of an environmental impact statement it will issue, which will be taken into consideration in the approval process.