By taking land, KM invites loss in court
To the editor:
At the Tuesday, March 29 Department of Public Utilities hearings on Tennessee Gas and Kinder Morgan's request to be allowed use eminent domain to gain access to and use of private property for their pipeline routes, demonstrators had signs reading "no eminent domain for private gain." A fellow attendee commented that was a catchy phrase, but he thought that it was an expression of an opinion with no basis in law. In fact, it has a strong basis in law.
Most readers are familiar with the "Citizens' United" Supreme Court case in which the court found that under free speech, corporations should be free as private parties to give unlimited amounts to campaign organizations. In 2005 the Court, by the same 5-4 split, rendered an equally preposterous decision.
In Kelo Vs. the city of New London, it decided that "economic development" constituted a "public use" that justified the taking of private property through eminent domain. According to this decision, the government can utilize eminent domain to seize property when it deems it necessary for "economic development." In her dissent, Justice Sandra Day O'Connor stated "Under the banner of economic development, all private property is vulnerable to being taken and transferred to another private owner."
A year later, President George W. Bush was so concerned about the implications of this decision that the White House issued Executive Order 13406 which stated in Section 1 that the federal government must limit its use of taking private property to "public use" with "just compensation" for the "purpose of benefiting the general public." The order limits this use by stating that it may not be used "for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken." In other words, "No eminent domain for private gain."
The routes of both the Northeast Direct Pipeline and the Connecticut expansion project in Sandisfield would cross private farm lands and lands that taxpayers have paid to protect from development. NED also would go through pristine lands that constitute the drinking water resource for nearly half of Berkshire residents. With less than a third of the gas volume contracted for use in New England, and with none of it going to towns through which the pipelines pass, Kinder Morgan cannot possibly demonstrate a benefit to the general public, and thus the only benefit would be the economic interest of Kinder Morgan, a private party whose free speech rights were upheld in Citizens' United.
It is obvious that if the Department of Public Utilities is unwise enough to find in favor of Kinder Morgan, there is a strong likelihood that the decision could be overturned under a legal challenge in the courts.
Douglas McNally, Windsor The writer is a Windsor Selectman.