Posts tagged ‘fracking’
August 17, 2016
August 17, 2016:- If you are interested in electricity prices, today’s decision from the Supreme Judicial Court (SJC) affects you. The case saw the Conservation Law Foundation and the power company Engie Gas (formerly GDF Suez) on the same side. Neither wanted to see electricity companies able to buy pipeline capacity, as this article in the Springfield Republican explains.
The question before the SJC: May the Department of Public Utilities (DPU) approve contracts that electricity-distribution companies want to enter into with natural-gas power generators?
The answer: No. That is the abridged version of today’s 37-page decision.
The impact? Find out by looking at your electricity bills over the months and years ahead.
Note to grammarians and students of legislative drafting: You too may be interested in this decision because it discusses redenda singula singulis, AKA the rule of the last antecedent.
What rights do landowners have when a pipeline company takes part of their property by eminent domain? As I mentioned on Monte Belmonte‘s show on The River, although federal law governs the taking itself, state law determines the meaning of “just compensation.” What, then, is “just compensation” for an easement over part of your land?
Here in Massachusetts the courts start their analysis with the applicable statute, M.G.L.c.79, s.12, which provides that in the case of a partial taking the assessment shall include “damages to the part not taken.” So the landowner needs to show the diminution in the fair market value of the whole parcel (both the taken part and the remaining part). In other words, what would a hypothetical willing buyer pay for the property as a whole after it had been on the market for a reasonable length of time. At this point readers may wonder how a judge would arrive at that hypothetical buyer’s price. The following case provides some guidance.
When the United States District Court for the District of Massachusetts considered this issue, it decided to take into account several factors, including (1) “stigma,” i.e public fear of potential hazards (even exaggerated fears based on misinformation) and (2) the possible additional construction expenses and the “administrative hassle” of having to abide by the company’s rules. The figure the judge ordered was far in excess of what the company deemed reasonable, so the company appealed. But the Court of Appeals for the First Circuit affirmed the judge’s decision. Portland Natural Gas Transmission Sys. v. 19.2 Acres of Land in Haverhill, 195 F.Supp.2d 314 (D.Mass. 2002) aff’d 318 F.3d 279 (1st Cir. 2003).
What does this mean for landowners in Berkshire and Franklin Counties whose properties the underground pipeline might cross? When preparing for the eminent domain case, they should make sure their attorneys have garnered abundant evidence of how the taking will diminish the fair market value of their property, including photographs and testimony from expert and lay witnesses alike. In putting their evidence together they should bear in mind that the court should take into account the “stigma” and “hassle” factors.
If you have questions about what might constitute “stigma” and “hassle,” please feel free to post a comment/call/email.
November 8, 2013
In October I gave a talk on the law surrounding hydraulic fracturing (fracking) and shared the stage with Professor Steven Petsch, a geologist who teaches at the University of Massachusetts, Amherst. You can watch both presentations by clicking here. Mine starts around the 46-minute mark, by the way.
My presentation focused on the current regulatory ban on Class II wells and the question of whether it could withstand a courtroom challenge. Professor Petsch described the geology of the Pioneer Valley and made absolutely clear that nobody has discovered natural gas in the area. He also explained why: The history of the rock formations in Western and Central Massachusetts make it extremely unlikely that they contain recoverable natural gas.
About a year ago the Massachusetts State Geologist posted a helpful overview online, which you can read here. Like Professor Petsch, the State Geologist makes abundantly clear that nobody has discovered natural gas in Massachusetts.
Nevertheless an organization called Environment Massachusetts keeps claiming that gas deposits have been found here. The people who work for Environment Massachusetts may be right about a lot of things, but on this they are just wrong. So please remember, if a canvasser from Environment Massachusetts asks you for a contribution because (as their website alleges) “geologists recently discovered shale gas in Western Massachusetts,” you may decline with a perfectly clear conscience.