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Federal judge rules that PSB hearings must remain open to the public

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Posted on August 3, 2016 |
By Mike Polhamus VTDigger.org



VERMONT — An ongoing dispute over whether Vermont Gas can install a natural gas pipeline through a park in Hinesburg is the last obstacle the company faces as it seeks to install a 41-mile line from Williston to Middlebury.

A court decision and several legal actions made in the past few days could have an impact on how the project proceeds.

A federal judge on Monday ordered the Public Service Board to allow the public into an Aug. 4 hearing about whether Vermont Gas may claim eminent domain over Geprags Park in Hinesburg. Last month, the board ordered the hearing closed to the public because of protests.

On Friday, Vermont Gas requested that the Public Service Board remove from the case five Hinesburg residents who oppose the pipeline through Geprags Park.

Between these two events, on Saturday, Jim Dumont, the attorney for the five Hinesburg residents, filed a complaint with Hinesburg and the Public Service Board alleging that the town’s selectboard violated state open-meeting laws when selectboard members negotiated an agreement with Vermont Gas outside of public meetings.

An attorney from Hinesburg got a federal judge on Monday to overturn the Public Service Board’s July 22 order that blocked the public from attending an eminent domain hearing for Gepgrags Park. Protests had caused previous hearings to be disrupted or cancelled.

Lisa Barrett, a retired Vermont Assistant Attorney General, filed a motion July 29 with the U.S. District Court demanding public access to the hearing. District Court Chief Judge Christina Reiss on Monday granted her request.

Reiss said the PSB’s order couldn’t be sustained under the First Amendment because it was not supported by adequate factual findings. “It is not narrowly tailored to protect the Board’s interests in orderly proceedings, and undermines rather than advances the public’s compelling interest in attendance at such proceedings,” Reiss wrote in her order.

“The Public Service Board never even asked demonstrators to leave,” Barrett said.

The board overreached in attempting to block the public from the Aug. 4 hearing, Barrett said.

“I think it’s very important for real people, just the plain old public, to be involved in our government, and we need to take an interest and take the government back,” Barrett said. “This case is of a piece with that. You can’t have the government telling people we have no right to see what the government’s doing.”

The PSB attempted to secure video feeds for the hearing and to admit members of the press, but Reiss said that was insufficient to protect citizens’ rights to assemble.

One of the protesters said he doesn’t expect the ruling to make much difference.

“It’s nice that the federal court believes that part of our First Amendment rights includes the right to be present at a hearing when they’re happening, (but I don’t think) that’s an indication the Public Service Board is going to value or listen to anything other than what the state or the corporations have to say,” said Alex Prolman, of Rising Tide Vermont, who on Friday had his hand locked inside the tracks of a Vermont Gas excavator in Middlebury as a protest.

The hearing will take place at 9:30 a.m. on Thursday at the Agency of Natural Resources building on Junction Road in Berlin.

STATUS DOWNGRADE?

On Friday, Vermont Gas filed a motion asking the Public Service Board to strip party status from five Hinesburg residents who currently act as intervenors in the proceedings.

This would remove from the case one of the company’s most dogged adversaries, Bristol-based attorney Jim Dumont. Dumont represents the five residents, who gained party status because of their frequent use of the park.

Vermont Gas attorneys argue that because the company has agreed to drill horizontally beneath the entirety of Geprags Park, there’s no reason for Dumont’s clients to retain party status.

Dumont’s clients appear to be misusing their party status, Vermont Gas attorneys say, and they’ve raised irrelevant issues that are unrelated to the reasons that were used to justify their inclusion in the process.

Their continued involvement will hurt ratepayers, Vermont Gas and the project itself, company attorneys say, because they will ensure that the case gets appealed to the Vermont Supreme Court. An appeal would add more cost to the project, the attorneys say, and that ultimately ratepayers would be on the hook.

“The intervenors’ conduct in this proceeding, in addition to belying the reasons they gave to justify their party status, threatens serious harm to the project, VGS and the rate-paying public,” the Vermont Gas motion reads. “Obtaining timely access across Geprags Park — the only parcel where VGS has yet to acquire a right-of-way — is of critical importance to the completion of the pipeline construction during this year’s construction season.”

The pipeline construction is to be completed before the end of the year. Delays beyond that timeframe could result in sharp cost increases, the motion says, that could go beyond a rate cap set as part of an agreement made earlier this year between Vermont Gas and the Department of Public Service. Ratepayers are currently liable for $134 million of the pipeline expansion costs.

Vermont Gas may pass on costs to ratepapers that are associated with delays in acquiring rights-of-way or protests that interfere with construction, according to Chris Recchia, the commissioner of the Department of Public Service.

“It is possible they’re correct: if the delay is considered extraordinary, and it’s not in the normal course of things, (the resulting costs) could go above the cap,” Recchia said.

The Public Service Board must ultimately decide whether costs added to the pipeline resulted from protests or something Vermont Gas has done, Recchia said. The Department of Public Service is currently evaluating a cost increase caused by protest, he said.

“I’m happy to have protesters protest, and I’m a believer in their right to do so, but they do not have the right to do so in a manner that increases costs to ratepayers, and that appears to be what’s happening now,” Recchia said.

Vermont Gas told the board last month that the total cost of the project would go up a fourth time to $165 million. The 50,000 existing ratepayers in Franklin and Chittenden counties and 4,000 new ratepayers in Addison will be on the hook for $134 million of the project cost, according to an agreement between Vermont Gas and the Vermont Department of Public Service.

Vermont Gas attorneys argue Dumont wants to delay or forestall the pipeline’s construction, and his most recent motion could accomplish at least one of those aims.

For at least a second time in this case, Hinesburg’s selectboard violated the state’s open meetings laws, Dumont said, by surreptitiously approving an agreement with Vermont Gas after intimating to members of the audience that a public meeting had concluded.

Dumont asked the PSB to render invalid an agreement Hinesburg selectboard members reached Thursday with Vermont Gas. That agreement sets out several forms of remuneration the town will receive in exchange for a commitment not to oppose the company’s litigation to acquire, using eminent domain, an easement through Geprags Park.

GAS IN WEYBRIDGE

In the meantime, Vermont Gas announced on Wednesday that it had received approval from the town of Weybridge to sell natural gas to Weybridge residents. The selectboard approved the company’s “request to serve” in June and granted approval of the system design Tuesday night.

“The Weybridge extension will provide an important energy choice to almost 50 families in town, many of whom have already called to sign up,” said Don Rendall, Vermont Gas President and CEO.

The Weybridge expansion is part of the Addison Natural Gas Project and will provide service to families who live on Orchard Lane, Pleasant View Terrace, Otter Creek Lane, and a portion of Pulp Mill Bridge Road, Weybridge Road and Morgan Horse Farm Road. The Weybridge distribution lines will be installed this year, officials said.

In addition to natural gas service, Weybridge families will also be eligible to participate in Vermont Gas’ efficiency programs.

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