Deerfield MA Board of Health bans a Gas Pipeline. What will Boston do?

From the Deerfield Recorder:
“DEERFIELD — Deerfield’s Board of Health voted Wednesday night to ban construction of a proposed Tennessee Gas Pipeline Co. natural gas pipeline within the town’s borders, calling the project an “unreasonable risk to the health and lives of the residents of Deerfield.”

The decision came after more than two months of well-attended public hearings on the topic and was based on the advice of Cristobal Bonifaz, a lawyer from neighboring Conway.

“The Board of Health of Deerfield orders Kinder Morgan to cease immediately all of its activities in Deerfield related to the construction of the proposed pipeline within the boundaries of the town,” said Carolyn Shores Ness, the board of health’s chairwoman, in reading the decision.

The transcript produced by the legal proceedings that led up to the vote will be sent to both Kinder Morgan and the Federal Energy Regulatory Commission.

At the Deerfield Board of Selectmen’s Aug. 20 meeting, Bonifaz offered to act as the town’s attorney free of charge and told the selectmen that acting as the health board they had “unlimited power” to stop activities in town by Kinder Morgan Energy Partners, Tennessee Gas Pipeline’s parent company, that they deem a threat to public health and safety.

Bonifaz pointed to precedent set by two Massachusetts Supreme Judicial Court cases dealing with anthrax research in Cambridge and Amherst and a situation in Lee in which he used a similar argument to prevent a coal-fired power plant from being built.

On Sept. 9, the Board of Health held a public hearing during which it presented 12 exhibits — composed mostly of news articles and studies concerning Kinder Morgan’s safety record and alleged violations of safety regulations on other pipeline projects, lists of pipeline accidents in the United States and around the world, and articles about the chemicals contained in fracked gas — and gave the company 15 days to respond.

Ness notified town residents on Sept. 24 that the deadline had passed with no response from Kinder Morgan and the Board of Health would begin reviewing the legal record in preparation for a second public hearing, where it would issue its ruling.

Kinder Morgan’s response

In a letter written on Sept. 24 and delivered two days after the deadline on Sept. 26, Tennessee Gas Pipeline Co.’s attorney, Boston-based law firm LeClairRyan, informed the town that FERC would be the governing body responsible for reviewing the project and directed the town to raise any concerns with the commission.

The letter, which was signed by James L. Messenger of LeClairRyan, said the firm disagrees with “(the board’s) assertion that local boards of health, such as that of Deerfield, enjoy ‘unlimited’ power to negate or regulate the construction and installation of interstate natural gas pipelines,” and “that any attempt to do so is ‘not pre-emptable by the Federal government.’”

Tamara Young-Allen, a spokesperson for FERC, previously told The Recorder that the commission takes each unique case into consideration, but does hold jurisdiction over interstate commerce. The proposed pipeline will transport natural gas from Pennsylvania’s Marcellus shale reserves through New York and Massachusetts to Dracut, which sits just north of Lowell.

Messenger recommended that the town participate in FERC’s pre-filing process by submitting comments and attending open houses and meetings conducted by Kinder Morgan and the commission.

“We encourage the town of Deerfield to raise any concerns it may have regarding the Northeast Energy Direct project with FERC, and we will continue to work with all stakeholders within the FERC certificate and environmental review process,” said Melissa Ruiz, a spokesperson for Kinder Morgan, in an email.

Bonifaz’s argument

Bonifaz, however, maintains that while FERC can preempt all local environmental regulations and any matters related to taxes, money or commerce, matters regarding health or injury are “specifically not preempted” in the Natural Gas Act.

According to Bonifaz, the health board’s ruling leaves Kinder Morgan with two options: to appeal to state courts for a remedy, such as overturning the health board’s ruling, or to move the pipeline outside the boundaries of Deerfield.

Bonifaz said he is committed to defending the town if legal action is taken.

“I, and others I will bring into the litigation, will be committed pro bono to represent the Board of Health and the Town of Deerfield if they dare to sue the Town all the way to the Supreme Court on all issues,” said Bonifaz. “There will be no legal fees to pay by the town and there will be no damages, as the board’s decision is based on solid legal basis.

“Given the arrogance and contempt Kinder Morgan has shown for Massachusetts by refusing to participate at the hearing, I expect a long process,” Bonifaz said. “We will also notify the FERC to stop considering Deerfield as a town through which the pipeline can be built.”

Bonifaz said other towns that may want to take an approach similar to Deerfield’s can purchase copies of the transcript from the town for an $85 fee and have their own health boards adopt it.

Ness said both Winchendon and Pepperell, Mass. have contacted the town about obtaining transcripts. She said she expects Kinder Morgan to sue.

“I feel comfortable that we will win,” she said.

The currently proposed 300-mile route for the 30-inch diameter pipe cuts through Conway, Ashfield, Shelburne, Deerfield, Montague, Erving, Warwick, Orange and Northfield.”