Kathryn R. Eiseman: State's duties on KM pipeline


CUMMINGTON >> Kinder Morgan is having a rough time in the landowner relations department. In Georgia, the company made the somewhat laughable blunder of trying to run a gasoline pipeline through property owned by the family of the publisher of three major newspapers. The press helped unite property rights advocates, environmentalists and legislators to bring the pipeline giant to its knees: the state of Georgia just placed a moratorium on the use of eminent domain for the project.

Here in Massachusetts, the impassioned pipeline opposition is certainly as strong as in Georgia; unfortunately, the legislative fixes are not as easy when it comes to the Northeast Energy Direct (NED) pipeline. Liquids pipelines, such as the Palmetto Pipeline thwarted in Georgia, do not require approval by the Federal Energy Regulatory Commission (FERC) to proceed with construction; that approval role is left to the states. Only proposed natural gas infrastructure (such as NED) is governed by the federal Natural Gas Act and subject to its sweeping powers of preemption over state and local laws.

Even when it comes to natural gas, though, FERC's power is by no means absolute. For example, states have the power to grant or deny water quality permits that are required for natural gas pipeline projects. This power is on par with FERC's because it stems from the federal Clean Water Act. Also, there is no preemption unless and until Kinder Morgan's Tennessee Gas receives a FERC certificate. Because NED has not been approved, all state and local wetlands laws apply, along with the rest of our laws.

The persisting power of laws outside of FERC's control is central to proceedings underway at the Massachusetts Department of Public Utilities (DPU), where Tennessee Gas claims authority under state law to enter the property of over 400 Massachusetts landowners to conduct extensive and invasive surveys, without landowner permission (and generally, over landowners' active and vocal denial of access).

Below are comments I delivered at the first of six public comment hearings being held across the commonwealth as part of these DPU survey access proceedings:

"To cut to the chase: The company is asking you, the government, to abrogate the fundamental rights of hundreds of people. Yet there has been no determination from any government body that the proposed NED project as a whole is in the public interest — no governmental order that would warrant any proceedings "preliminary to eminent domain". And it is generally understood that any determination of the "public convenience and necessity" of this proposal is outside of your authority.

A broken system

Absent a FERC certificate, Tennessee Gas has no colorable claim for immediate survey access rights against the will of landowners. Therefore, I question the department's authority to entertain the company's petitions before you at this time. If you were to grant the petitions, it would be yet another instance of how the system that we are all trying to work within is broken.

There is no place in the regulatory scheme to truly evaluate the public costs and benefits of the NED project as a whole. State Senate President Rosenberg has noted that the "current paradigm makes it difficult for FERC to consider a proposal within the context of what we need to do as a country to address climate change and to develop a green energy future." I would go further than that, and say that all that seems to matter to FERC is whether a pipeline company has lined up contracts for capacity on the pipeline. The market demand embodied in those contracts is what FERC equates with public need.

At the same time, your department has declined to consider property rights or open space preservation in precedent agreement proceedings where the DPU has allowed the company to assemble its case for project demand, piecemeal, lining up contracts based primarily on purported "least cost" as a proxy for the public interest. By the time this proposal gets to a FERC determination, the DPU, and its counterparts across New England, will have ruled on the capacity contracts and supposed "need" for the project, without anyone weighing them against the true costs and harms on the ground.

Whether or not there is statutory authority, in the abstract, for the department to entertain the company's petitions, please do not underestimate what, concretely, is at stake with this proposed intrusion. The people have not just a common law right to the quiet enjoyment of their property, but a constitutional right to be secure in their homes, and fundamentally, to be left alone.

Speculation about a theoretical future FERC certificate is not 'just cause' to abrogate these rights. The request of Tennessee Gas is unreasonable, and unwarranted, and the government of the commonwealth of Massachusetts has the duty, to its people, to deny the company's request.

Kathryn Eiseman is director, Massachusetts PipeLine Awareness Network and president, PipeLine Awareness Network for the Northeast.


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