DEERFIELD — A federal tort action filed by the town against the Federal Energy Regulatory Commission earlier this month has been amended to add the U.S. Department of Energy to the complaint as a defendant.
Under the Federal Tort Claims Act private parties have the right to sue the federal government for damages if they are injured due to the negligence of one of its employees. The town’s claim is directed at Tennessee Gas Pipeline’s Co.’s proposed 36-inch diameter natural gas pipeline, which is expected to pass through Deerfield and seven other Franklin County towns.
The original action, filed with the FERC on Feb. 4 by Cristobal Bonifaz, a Conway lawyer representing the town free-of-charge in its fight against the project, claimed that a 2005 amendment to 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 violates the Fifth Amendment to the Constitution. It seeks $675.50 in damages for costs associated with holding public forums related to the pipeline.
“At no time has DOE taken into account in its permitting processes to export natural gas that the transportation of gas for export, including Kinder Morgan’s gas, is carried through pipelines approved by FERC under alleged authority granted to FERC by 2005 Amendments to the Natural Gas Act, and that approval by FERC of such transportation of Natural Gas for export is in violation of the Constitution of the United States,” Bonifaz wrote, in the amended claim.
Kinder Morgan is Tennessee Gas Co.’s parent company.
“The lack of realization and communication by DOE of these facts, to anyone, in its continuing granting of permits for exportation of Natural Gas, transported under FERC’s approval for export, are negligent acts that have resulted in expenses and damages to [the] Claimant,” Bonifaz continued.
Bonifaz said a second claim has been filed on behalf of a private individual, whose name he declined to provide at the person’s request. It is identical to the first claim, he said, with the exception of a letter from Kinder Morgan to the property owner added as an exhibit.
The Fifth Amendment states that private property can’t be taken for public use by eminent domain unless its owner is justly compensated. The FERC gives 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, plans to apply for such a permit.
Bonifaz contends that since exporting natural gas “depletes a national resource” and contributes to climate change, doing so is not public use and is against the public interest of the United States.
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.”
If the agencies pay Deerfield damages under the claim, Bonifaz said, it would be an admission that they have acted unconstitutionally and do not have the authority to regulate gas destined for export. If it denies the claim, the town will have six months to appeal through a lawsuit in federal court.
Bonifaz has previously said plans to do so if it the claim is rejected.
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.”
Kulik introduced the legislation in the state House of Representatives in January.