By TOM RELIHAN
Greenfield Recorder Staff
DEERFIELD — The town’s battle to prevent a proposed natural gas pipeline from passing within its limits continues to heat up, with Kinder Morgan, the parent company of Tennessee Gas Pipeline Co., firing back against an October decision by the Deerfield Board of Health to ban activities related to the project.
In a letter received by the Town of Deerfield on Nov. 19, James L. Messenger, a lawyer from the firm LeClairRyan which has an office in Boston and represents Tennessee Gas and its affiliates, describes the board’s decision as a “nullity,” noting that it is preempted by the federal Natural Gas Act. That act grants the Federal Energy Regulatory Commission the authority to regulate interstate pipelines.
The Northeast Energy Direct project proposed by Tennessee Gas would transport gas from the Marcellus shale reserves in Pennsylvania via a 36-inch diameter, 300-mile-long pipeline that would pass through Plainfield, Deerfield and other Franklin County towns on its way from Wright, N.Y., to Dracut, just north of Lowell. It is expected to carry 2.2 billion cubic feet of natural gas per day and cost about $4 billion.
“Contrary to the claims in the Order, the Board of Health, (among other things), exceeded its authority under its own by-laws and Massachusetts General Law chapter 111,” wrote Messenger. “Additionally, even if the Board of Health did not exceed its authority under the (town) by-laws or state law, its actions are preempted by the Natural Gas Act.”
Messenger also defended Tennessee Gas’s safety record and reputation, which he described as “excellent” in connection with construction, operation and maintenance of interstate pipelines.
During the public hearings that preceded the Board of Health’s decision to ban the project from town on Oct. 22, the board presented a number of exhibits, mostly newspaper articles, reports and studies, that described accidents and other incidents on work sites or along Kinder Morgan pipelines, as well as concerns about the contents of the “fracked” gas — natural gas obtained through a process called hydraulic fracturing — that would travel along the proposed pipeline.
Messenger noted that FERC has issued numerous certificates of public convenience and necessity — documents that allow the recipient to engage in the transportation and sale of natural gas in interstate commerce or to acquire and operate facilities needed to do so — to Tennessee Gas in the past. The certification, he wrote, is awarded after a thorough examination by the commission of the company to evaluate safety considerations and environmental impact, Messenger wrote.
“FERC’s repeated issuance of COPCNs to Tennessee Gas over the years belies the claims in the Order regarding Tennessee Gas, which has an exceptional record of performance, and the natural gas industry in general,” wrote Messenger.
According to FERC’s website, natural gas certificates and hydropower licenses issued by the commission convey the power of eminent domain, which it said can be used as a last resort if a landowner and the project developer cannot reach agreement on compensation for use or purchase of property required for the project.
Messenger also “categorically rejected” the board’s claims about fracked gas and asked the board to clarify whether or not its order is intended to prohibit Tennessee Gas from performing surveys on both public and private lands in Deerfield.
Cristobal Bonifaz, the lawyer from Conway representing the town, responded to the letter with one of his own, directing Messenger to refer to the board’s decision as “the best evidence of its contents,” and offering no direct clarification.
In the decision, the board ordered “Kinder Morgan or any of its subsidiaries or affiliated companies to cease immediately all of its activities in Deerfield related to the construction of the proposed hydraulic fracturing pipeline with the boundaries of the town of Deerfield, Massachusetts.”
Bonifaz wrote that Messenger’s portrayal of the decision as a “nullity” and Kinder Morgan’s dismissal of the entire process, including the company’s failure to respond or object to the board’s concerns within the allotted 15-day period and to show up for a scheduled hearing, are violations of Massachusetts state law.
Bonifaz also listed a number of other actions taken by Kinder Morgan in recent months which he characterized as “fraudulent misrepresentations” designed to “obtain support to carry out (a) vast, unjust enrichment scheme at the expense of homeowners whose properties would be destroyed by the pipeline project.”
Those activities, Bonifaz wrote, included stating publicly that it intends to transport fracked gas through Massachusetts to fulfill natural gas requirements, but that it does not know the composition or what chemicals would be present in that gas as a result of the extraction process, and showing photographs of a compressor station in Southwick that company representatives said would be similar to the compressor station that would be installed along the pipeline.
Bonifaz said the contents of the gas could be determined through simple chromatographic tests and that the photographs showed a 2,000-horsepower station, while the one planned for Franklin County is expected to be much larger at 120,000-horsepower.
“The comment reflects a corporation which has shown total disregard and contempt for the Commonwealth of Massachusetts and its laws,” Bonifaz wrote. “All of these actions show contempt for the Laws of the Commonwealth,” he said in a subsequent email.
Yesterday representatives from Kinder Morgan confirmed that the company is evaluating an alternative route, dubbed the New Hampshire Powerline Alternative, that would follow existing utility lines and take part of the pipeline through southern New Hampshire. Under that route, the pipeline would still pass through Plainfield, Deerfield and six other Franklin County towns, but skip over Orange and Warwick.
