[F]oes of a Vermont Gas Systems pipeline through Hinesburg have asked the Vermont Supreme Court to take up their case in the event the Public Service Board again rejects their arguments, as it did two weeks ago.
Pipeline opponents have requested that the board redo the recently completed trial, alleging flaws in the board’s decision against them. If things don’t go their way, they’ll turn to the state’s highest court.
The board wrote a new deed in its Sept. 13 ruling — which granted Vermont Gas Systems an easement for a pipeline through Hinesburg’s Geprags Park — that replaced one written by Vermont Gas and on which that case hinged.
Represented by Bristol-based attorney Jim Dumont, several Hinesburg residents argued they were unfairly denied the opportunity to submit that new deed to the kind of scrutiny the trial was supposed to provide.
Dumont raised several other issues in his plea to the Public Service Board, many of which he had not already raised. One of those relates to the board’s apparent willingness to conflate cost and ease with feasibility, Dumont said.
Ordinarily litigants aren’t allowed to raise new issues in an appeal, but the new issues are a result of the board’s newly written deed, which by composing as part of its order, the board prevented his clients from addressing, Dumont said.
“We’re bringing up issues that are now relevant because of new terms imposed by the board,” Dumont said. “We couldn’t have argued about ‘What does it mean “to the extent feasible,”’ because nobody had proposed it before,” he said.
The term “to the extent feasible” is one the board wrote into its new Vermont Gas deed, and the board appears willing to set an extremely low bar for feasibility, Dumont said. For instance, the board said in its Sept. 13 order that it’s not feasible for Vermont Gas to route the pipeline around Geprags Park, when the evidence the company provided to support this claim showed only that another route would cost more or add difficulty, he said.
Dumont filed an appeal with the Vermont Supreme Court that under procedural rules won’t take effect until and unless his client’s lose before the Public Service Board, he said.
Vermont Gas representatives said Dumont’s appeals will harm future customers by denying them access to a natural gas pipeline for another winter.
“Vermont Gas is disappointed though not surprised by this news,” company spokeswoman Beth Parent said in an email. “Earlier this month, the Public Service Board granted us approval to access the last remaining parcel of land in Hinesburg, paving the way to finish this project. As winter approaches, families and businesses who were depending on a more affordable heating option will have to wait because of a small minority of individuals standing in the way.”
The case, should it remain decided in favor of Vermont Gas, gives the company eminent domain over an easement through Geprags Park, which the Geprags family gave the town of Hinesburg on the condition that it be used for only education or recreation.
Vermont Gas plans to drill horizontally beneath the length of the park to install the pipeline, and in doing so to avoid disturbing wetlands, trails and other features in the park Dumont’s clients are seeking to protect.
This drilling technology, called horizontal directional drilling, or HDD, served as one of the Public Service Board’s justifications for granting Vermont Gas the right to condemn the property.
But neither Vermont Gas, nor any future corporation that might buy the utility, is barred from simply unearthing the pipeline if they decide to replace it, to inspect it, or to otherwise deem necessary to access it.
Vermont Gas engineers testified in the case that they had no reason to dig up the pipe in such an event, since replacing it would cost less. Likewise, the company’s representatives said they had no reason to use authorization the deed grants to mow a 20-foot swath through the wetlands that sit above the pipe’s proposed location.
That’s beside the point, Dumont said.
Another company could buy Vermont Gas next year, he said, and that company would find, in the deed the Public Service Board awarded, nothing to prevent it from digging up the pipeline, replacing it, and from that point onward mowing a wide swath above a replacement pipeline buried a few feet beneath the wetlands.
There’s ample reason to think future owners of Vermont Gas might elect to dig a trench and bury the pipeline in a more conventional fashion, Dumont said, since this type of burial is cheaper and easier to maintain.
Furthermore, the board established in their order earlier this month that they’ll deem ‘necessary’ what Vermont Gas finds easiest and cheapest, Dumont said.
The board’s order states that an easement through Geprags Park is necessary — the statutory bar for eminent domain cases to proceed — because alternatives would cost more or add difficulty, he said.
For instance, if future Vermont Gas owners can’t get easements they need on either side of the park in order to use HDD technology, they might tell the board that HDD simply isn’t feasible. According to the logic the board used in its Sept. 13 decision, that would settle the argument in the gas company’s favor, Dumont said.
The board’s new deed raises these and other unexamined difficulties, none of which his clients were afforded the opportunity to challenge or question, Dumont said.
As further evidence of this impropriety, Dumont said that the board’s new deed excludes environmental protections included in the original deed the company submitted for the case. The original deed included a protection plan for certain species of birds in the area, for example — a provision the board left out of their new deed, he said.
These protections aren’t required for a pipeline buried using HDD methods, but should any replacement pipeline be installed with the more conventional trenching methods, as the deed allows, these protections’ omission would expose to harm the public’s land, plants and animals, he said.
“If it turns out that HDD isn’t feasible for any reason,” he said, “then what protections are left?”
