Pipeline opposition in Massachusetts usually stems from concerns about degradation of conservation lands, greenhouse gas emissions, and the financial burden on electric ratepayers. Now, news from Los Angeles provides another arrow in the opponents’ quiver:
On January 7, 2,300 homes were evacuated and a state of emergency declared by the governor due to a methane gas leak at a Southern California Gas storage facility. Residents complained that they suffered headaches, nausea, rashes and other health problems.
Few people in Massachusetts, however, remain on the fence about the Northeast Energy Direct (NED) pipeline.
Two years ago, Kinder Morgan representatives first began approaching landowners in the path of the NED pipeline, at that time no more than a twinkle in its corporate eye. Now, organizations throughout Massachusetts and New Hampshire, including municipal and regional groups and state agencies – the Department of Public Utilities and the Attorney General’s Office – have solidified their positions pro and con, and are gearing up for a long battle.
In the most recent skirmish, Massachusetts and New Hampshire residents eager to register their opposition to the pipeline project were stymied when the Federal Energy Regulatory Commission (FERC) abruptly shut down its online portals for public input days before the January 6 deadline.
Mysteriously, FERC cited “inclement weather” as the reason for several days of the shutdown – despite unusually warm Washington, D.C. temperatures.
Rosemary Wessel of the anti-pipeline organization, No Fracked Gas in Mass, said, “people outraged by the unfair procedure wrote to FERC’s Public Affairs Office, their Senators and Congress people and the President requesting a deadline extension.”
The outcry was effective. FERC has extended the deadline for commenting and for intervening as a party to the proceedings to January 15 at 5 p.m. Intervener status allows full participation in hearings on NED, including cross-examination, and allows submission of written briefs. Step-by-step information on how to intervene in the FERC proceedings, including sample forms, can be found at the web site, nofrackedgasinmass.org.
Information on commenting and intervening, both of which can be done fairly quickly with electronic filing, can be found at the end of this article.
Pipeline Activists in the Berkshires and Beyond
Efforts to educate people about the impacts of the NED pipeline, and to organize effective opposition coalitions, have been mounted in Massachusetts and New Hampshire by nonprofit groups, land trusts, conservation commissions, county organizations and municipalities.
Key organizers and communicators have been the groups No Fracked Gas in Mass, Massachusetts Pipeline Awareness (MassPLAN), the Berkshire Environmental Action Team, the Berkshire Node of 350MA.
In addition, the Massachusetts Association of Conservation Commissions (MACC), the Massachusetts Land Trust Coalition, and Northeast Energy Solutions, representing hundreds of watershed associations, land trusts, open space committees, businesses, and conservation commissions, have all actively opposed the pipeline in meetings, letters, and formal comments.
As of January 5, there have been hundreds of formal interveners in the FERC pipeline approval process, including the Berkshire Regional Planning Commission, the Franklin Regional Council of Governments, the MACC, Ashfield’s Planning Board, the Massachusetts and Northfield Historical Commissions, ten towns comprising the Municipal Coalition Against the Pipeline, and four Essex County legislators.
On the political front, the pipeline has been opposed by United States Senators Elizabeth Warren (D-MA), Edward Markey (D-MA), Bernie Sanders (I-VT), Jeanne Shaheen (D-NH), Kelly Ayotte (R-NH), Representatives Ann McLane Kuster (NH-2), Frank Guinta (NH-1), and Jim McGovern (MA-2).
Representative Niki Tsongas (D-3), although not directly opposing the pipeline, has been uneasy about its ramifications. Her comment on the scope of the Environmental Impact Statement (EIS) said that, “There are…a number of remaining concerns, including the effects of compressor and metering stations, how quarry blasting would affect the pipeline, as well as the proposed route passing through historic farm land, Article 97 Conservation land, wildlife management areas, wetlands, and across drinking water supplies or wells.”
Significantly, a study commissioned by Massachusetts Attorney General, Maura Healey, found that there was no need for a pipeline in the state.
Releasing the study in October, Attorney General Healey said, “This study demonstrates that we do not need increased gas capacity to meet electric reliability needs, and that electric ratepayers shouldn’t foot the bill for additional pipelines. [It further] demonstrates that a much more cost-efficient solution to energy needs is to embrace energy efficiency and demand response programs that protect ratepayers and significantly reduce greenhouse gas emissions.”
Legal Challenges to DPU Pipeline Contract Decisions
A pipeline that cannot demonstrate enough demand for its gas-shipping services may not be looked on favorably by FERC.
So far, the NED is undersubscribed. According to Caitlin Peale Sloan of the Conservation Law Foundation, only about 40 percent of the pipeline’s capacity is currently contracted. Kinder Morgan subsidiary, Tennessee Gas Pipeline Company, has been scrambling for contracts to plump up its customer base by approaching New England states for ratepayer-subsidized contracts – a sharp departure from the usual practice of customers contracting and paying for their own gas transportation.
On October 2, the Massachusetts Department of Public Utilities (DPU) issued an order allowing electric utilities to contract with a pipeline for gas capacity, with “cost recovery” amounts paid directly by electric ratepayers. Conservation Law Foundation (CLF) has filed an appeal before the Massachusetts Supreme Judicial Court challenging the legality of the October 2 DPU decision. GDF Suarez, a company that sells liquid natural gas, is also appealing the order.
To date, no electric utility has filed for DPU approval of a NED contract under the October 2 order, although it is possible that contracts are in the negotiation stage.
In the second legal challenge before the Supreme Judicial Court, CLF, together with Pipeline Awareness Network – Northeast and Northeast Energy Solutions, has appealed the decision of the DPU approving the gas capacity contracts of Berkshire Gas, Columbia Gas, and National Grid.
The plaintiffs are expected to argue, among other things, that the DPU should have conducted a factual analysis of future demand and cost-effective energy and efficiency resources before making decisions regarding additional gas capacity investments. Whether Massachusetts can meet its legislated reductions of greenhouse gases under the Global Warming Solutions Act if natural gas use is expanded may also be an issue.
FERC Routinely Grants Pipeline Applications
Will well-informed analysis and opposition in the state, together with legal challenges to the pipeline, point the way for FERC to deny Tennessee’s Certificate of Public Convenience and Necessity?
Photo: Chelsea Feinstein
U.S. Rep. Jim McGovern (D-Worcester) gave one answer to that question at a citizen meeting in Greenfield last June, saying, “My experience with FERC is that (its decisions) are a slam-dunk for the industry. Whatever the industry wants, it gets. I don’t trust FERC at all.”
Delaware Riverkeeper, Maya K. van Rossum, echoes Representative McGovern, stating that, according to Delaware River Network research, FERC “has never in its entire history denied an application for a natural gas pipeline that was submitted for vote to the FERC Commissioners.”
In a blistering letter to two members of the U.S. Senate Energy and Natural Resources Committee, Riverkeeper Van Rossum requested that a Government Accountability Office (GAO) investigation of FERC’s fee mechanisms be initiated.
The letter states that the agency is “blatantly biased” and routinely approves pipeline applications because it is 100 percent funded by fees from the industry it regulates.
An October 18, 2012 FERC rulemaking document describes FERC’s fee-collection process: “After the Commission calculates the costs of administering the natural gas regulatory program, it assesses those costs to natural gas pipeline companies (Pipelines). Each Pipeline is assessed a proportional share of the Commission’s costs of administering the natural gas program.”
Pipelines pay FERC and in turn, are allowed to recover that amount from their customers.
The Riverkeeper letter also points out that the agency is compelled to approve a growing number of new pipelines. Older pipelines may be abandoned through FERC procedures, or pipeline companies may lose their ability to pay with a changing customer base. “The approval of new pipeline projects in the only way FERC can ultimately stay in business,” the letter states.
Nonetheless, if Kinder Morgan and Tennessee cannot line up customers to fill more of the pipeline capacity than the 40 percent contracted so far, FERC may not look favorably on the NED project –- particularly in light of the muscular Massachusetts and New Hampshire opposition.
[Step-by-step information on how to intervene in the FERC proceedings, including sample forms, can be found at the web site, nofrackedgasinmass.org]
