NED Pipeline Project ‘Suspended’ Efforts Turn to FERC Reform

May 6, 2016


by Kaela Law

Kinder Morgan is not moving ahead with their plans for the Northeast Energy Direct Pipeline (NED).

In a prepared statement, the company said it was suspending NED because the project could not attract enough utility and other customers to buy the gas.

“Unfortunately, despite working for more than two years and expending substantial shareholder resources, (the company) did not receive the additional commitments it expected.  As a result, there are currently neither sufficient volumes, nor a reasonable expectation of securing them, to proceed with the project as it is currently configured,” the statement said.

During a conference call with investment analysts, President and CEO, Steven Kean, said the company “gave it our all on NED.  I mean, we pursued customers hard, we pursued approvals hard.  In the end, the customer commitments just weren’t there.”

This is happy news to many residents in Pelham, Windham, Hudson, Litchfield, Salem and Londonderry who were facing eminent domain land takings by Kinder Morgan, a private company undertaking a private venture.

“It is tough living every moment with the fear that your children’s safety will be placed at risk and the use, enjoyment and value of your home (and largest asset) taken away from you for private profit,” said Richard Husband, a Litchfield resident and member of New Hampshire Pipeline Awareness Network (NHPLAN).

Husband is carrying the group’s efforts forward despite the news the NED pipeline project has been put on hold.  The Kinder Morgan NED project filing still sits before the Federal Energy Regulatory Commission who is waiting to hear from the company whether or not they will formally withdraw their application.

The pipeline approval process through the Federal Energy Regulatory Commission has left Husband and many New Englanders with a great mistrust in the system and belief that the system is inherently flawed.  Efforts are being driven for more sound energy policies in New Hampshire and the region, but efforts are also being put towards a FERC reform.

In a letter from April 25 to Senators Shaheen and Ayotte, Congressman Guinta and Congresswoman Kuster, Husband wrote:  “Fixing FERC is a fight for the arena of federal representatives.  Reform should include that 1) Major projects, such as the NED pipeline project, should be scheduled for formal evidentiary hearings to ensure transparency and fairness; 2) Comprehensive health impact assessments should be required for such projects to ensure the health and well-being of citizens; and 3) A Citizen Advocate position should be created for FERC proceedings to ensure a better system of checks and balances.”

The letter, dated April 25, was in fact a follow-up to the initial request for those three items made a month prior on March 25.  Twenty-three NH organizations including NHPLAN were signatories on the original letter to the NH Delegation in March.

Husband’s letter also questions the rationale behind S.2012, recently voted on by the senate, which seems to “further limit state authority in FERC processes.”

A big point of contention for leading NH statesmen is that companies are using federal pre-emption to fast track projects.

Senate President Chuck Morse, just weeks before the NED suspension news, drafted a letter to Commissioner Martin Honigberg of the NH Public Utilities Commission and Commissioner Tom Burack of the NH Department of Environmental Services that was also filed with the NED project docket at FERC.

“[Kinder Morgan’s] unwillingness to address concerns, and instead rely on Federal Energy Regulatory Commission pre-emption, has resulted in numerous state-level efforts to develop new laws and regulations for pipeline development … NED representatives dismissed both the New Hampshire Legislature and the New Hampshire Site Evaluation Committee, and stated that only FERC could regulate pipeline development.”  Morse’s letter continues, “While I appreciate the role that FERC backstop authority provides in the development of linear pipeline projects, this authority should only be used as a last resort in those instances where a developer has gone through great effort to address local and state concerns, and has made a good faith effort to meet state siting requirements.  I do not believe the NED project meets this expectation.”

While both of Husband’s letters are still awaiting a response from the NH Delegation, Jim Rubens, running for Senate against Ayotte and Governor Hassan, met with thirty members from NHPLAN on March 27th at the Lawrence Barn in Hollis to discuss the changes he would pursue making at FERC.

First Rubens would work to amend CFR 717f, which gives FERC the authority to issue a certificate for the use of federal eminent domain land takings.

“CFR 717f is the law under which FERC determines if (a pipeline project) is under the public interest.”  Rubens explained, “in 2006 the citizens in this state voted 85 percent to 15 percent for Article 12-a of the NH constitution, that says you can’t take people’s private land unless it’s for a public purpose.  Overwhelmingly, the voters passed this by a large margin.  What we need in CFR 717f is that [a pipeline company] can’t take land if there is a private purpose.”

Opponents of the pipeline found that a large portion of the NED project was being designed for export, which would not serve the public in the region of the ISO-NE power grid and, therefore, they argued that the use of eminent domain would be unjust.  Which brings Rubens to his second point that, “The burden of proof, at present, is placed on the opponents, and the applicants have a presumption of need.  It should be neutral in law, so there is an even playing field.  The burden of proof should be on the applicants.”

Lastly, Rubens held that “FERC review should include health effects.”

Citizens working so hard to stop this NED pipeline project were from all walks of life, from both sides of the political aisle, from environmental activists to Average Joe’s, all becoming involved and working together largely because where FERC is concerned there is little else working to protect them.

Just because the NED pipeline has been suspended by the company, opponents of the project are not slowing down.  There is still work to be done, they say, to ensure this doesn’t happen again to them or anybody else.

One such effort is the group’s support of HB1660 sponsored by Representative Jack Flanagan to help strengthen the state’s eminent domain laws regarding natural gas pipeline siting.

Other efforts are aimed at protecting ratepayers from picking up the tab and subsequent stranded costs associated with a 20-year pipeline contract by NH Utilities.  Eversource is currently trying to sign a 20-year contract on a different pipeline project.  Residents like Richard Husband are intervening in that PUC docket de 16-241 to protect ratepayer interests.

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