Massachusetts Town Files Federal Negligence Claim Against FERC

By Tom Relihan, The Recorder

DEERFIELD — The town of Deerfield plans to file a negligence claim against the United States government today in its fight against the planned natural gas pipeline through Franklin County.

The tort action claims that a 2005 change in the federal Natural Gas Act that gave the Federal Energy Regulatory Commission authority to regulate the transportation and sale of natural gas destined for sale overseas is unconstitutional.

Filed under the Federal Tort Claims Act, which gives private parties the right to sue the federal government for damages if they are injured due to the negligence of one of its employees, the claim takes aim at Tennessee Gas Co.’s proposed 36-inch diameter natural gas pipeline and is the latest salvo in the town’s battle to keep the pipeline from passing through its limits.

The claim was drafted and filed with the federal Department of Energy, the FERC, the U.S. attorney general and at the U.S. Attorney’s Office in Springfield on behalf of the town by Cristobal Bonifaz, a lawyer from Conway who has been representing Deerfield free of charge as it fights the project.

Many of the project’s opponents have raised concerns over the past year that much of the gas that will flow through the $4 billion, 300-mile-long pipeline is destined for export, claiming the volume of gas that is expected to travel along the pipeline from the Midwest Marcellus shale reserves — estimated at about 2.2 billion cubic feet per day — far exceeds the amount of gas that could be consumed in New England.

The filing includes a report by David Gilbert Keith, a member of Deerfield’s Energy Resources Committee and an independent environmental researcher, in which he concludes that most of the gas will be likely be liquefied and exported. He based his findings on an analysis of data from the federal Energy Information Agency.

The legal claim, which asks for $674 in compensation for the fees the town had to pay to hold a public hearing related to the issue and have the record of those meetings transcribed, alleges that the NGA amendment violates the “just compensation clause” of the Fifth Amendment to the Constitution. That clause 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.

According to FERC’s website, the agency can give private companies natural gas and hydropower certificates 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, has applied for such a permit.

Prior to the 2005 amendment, federal law only granted FERC jurisdiction over interstate pipeline commerce that occurred within the United States, but the amendment expanded the section of the law that spells out who its provisions cover to include “the importation or exportation of natural gas in foreign commerce and persons engaged in such importation or exportation.”

The problem with that power as it relates to the regulation of natural gas destined for export, Bonifaz wrote, is that it hinges on whether the taking is “for public use.”

Bonifaz maintains that selling the nation’s gas to foreign countries isn’t actually in the public interest.

First, he wrote, exporting gas “depletes a national resource for future usage and future generations without bringing any benefits whatsoever to the public interest,” and second, it enables those importing countries to “burn (the gas) into carbon dioxide and water,” which “adds significantly to the catastrophe of climate change,” something he says is of great concern to the United States.

Additionally, Bonifaz said, the profits from sales of exported gas mainly benefit private parties, not the public, and is thus not grounds for a Fifth Amendment taking. “The exportation of natural gas is a very profitable venture for private parties, and as per Kelo, such enrichment of a private party is not justification for Fifth Amendment takings,” he wrote.

“The 2005 amendment is unconstitutional on its face not only because exportation of gas is not in the public interest (for those two reasons), but also because foreign trade does not justify Fifth Amendment takings,” Bonifaz wrote. “Once trade benefit is accepted as public interest, Congress could allow the taking of virtually any private property that could more profitably be marketed abroad.”

If the agency pays Deerfield damages under the claim, Bonifaz said, it would be an admission that FERC has acted unconstitutionally and does not have the authority to regulate gas destined for export — an idea he said is crucial to putting teeth behind the town health board’s ban on pipeline activity under state laws and its proposed royalties legislation, filed in the state House of Representatives last month by Rep. Stephen Kulik.

If it denies the claim, the town will have six months to appeal through a lawsuit in federal court.

Deerfield’s pipeline fight

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 Board of Selectmen, which doubles as the town’s health board, sent a request to Rep. Stephen Kulik asking him 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.”

Construction of the pipeline, which would pass through Ashfield, Conway, Shelburne, Deerfield, Montague, Erving, Northfield and Warwick in Franklin County, is slated to begin in April 2017. It would begin operating in November 2018.

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