Opinion: Phase 2 Too High a Constitutional Price

Addison County is currently the scene of a controversial three-part drama.

Vermont Gas Systems/Gaz Métro (VGS/GM) has proposed the Addison Natural Gas Project (ANGP): Phase 1 will bring gas to Middlebury, and it has already received a Certificate of Public Good (CPG); Phase 2 is the subject of an application now before the Public Service Board (PSB); and Phase 3 is in the concept stage, and may someday bring gas from Middlebury to Rutland.

ANGP Phase 2 creates a lateral line to bring gas from Middlebury to the International Paper Co. (IPC) in Ticonderoga, N.Y. The principal justification for this project is that it will bring revenues to VGS/GM that the company can then use to help underwrite the costs of building Phase 3. Some people call this “free money,”just waiting to be taken and used to Vermont’s advantage.

Of course, it’s not really “free money,”because in order to build this project, a large transmission pipeline has to be constructed across the towns of Cornwall and Shoreham, and then under Lake Champlain to IPC on the far shore. On Town Meeting Day 2014, both the affected towns put the pipeline project to a vote. Both towns voted no —Cornwall overwhelmingly so: 126 against, 16 for. In Shoreham the vote was 66 against, 38 for.

The pipeline, however, isn’t going to run on town land, it’s going to run across private property —and nearly every landowner I have spoken with is adamantly opposed to the project. To add insult to injury, not a single family hosting the transmission line is going to receive gas service from the smaller distribution lines that will run to a very small number of locations —to approximately 130 potential addresses of the total 1,294 addresses in the two towns.

It’s easy to see why the stage has been set for controversy.

How can we step away from the controversy and figure this out civilly? As always, the Vermont Constitution can help us sort this out in a legal, rational and respectful manner that’s fair to all parties: the landowners, VGS/GM, and IPC.

The Vermont Constitution, Chapter I, Article 1st spells out our “unalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety. …”Property rights are fundamental. But they are not unlimited.

In the very next section, Article 2nd says “That private property ought to be subservient to public uses when necessity requires it, nevertheless, whenever any person’s property is taken for the use of the public, the owner ought to receive an equivalent in money.”

The beauty of our Constitution lies in its balancing of potentially conflicting interests: first, it establishes private property rights, and second it makes these rights subservient to public use when necessary.

This second provision is the basis for our laws on eminent domain, which enable a utility, for instance, to take property (often in the form of an easement, or even outright sale) for a project that delivers a legitimate “public use”of “necessity”—that is, a project that merits a “Certificate of Public Good,”as judged by the Public Service Board.

How do these constitutional provisions affect the Phase 2 application to the PSB for a Certificate of Public Good? Whose interests should predominate? Those of private landowners unwilling to sell easements that would enable the pipeline to cross their properties? Or is there a “public use”for which there is a “necessity,”and the sale of easements should be forced upon these landowners? 

An examination of the “public uses”of the project provides a clear answer: Even if every Vermont home and business along the project’s distribution lines signs up for service, approximately 99 percent of the gas moved through the line will be delivered to one, private, out-of-state customer, IPC. Ninety-nine percent!

In short, this project is about the private use of a gas system, not public use; and where there is virtually no public use, there certainly can be no public necessity.

In this project, VGS/GM therefore deserves no right to take property, no powers of eminent domain. And more broadly, there is no public use (“public good”) here to merit the issuance of a CPG by the PSB.

Some ANGP advocates have seen this weakness in the Phase 2 application, and they have offered a justification: Phase 2’s real public good is that the revenues earned will enable the construction of Phase 3 sooner —and Phase 3 will offer some public use. VGS/GM’s CEO, Don Gilbert, told the Addison Independent (June 24, 2013) that Phase 2 would “allow the company to extend gas to Rutland in 15 years, instead of more than 25 years from now.”While this may be so, the ANGP Phase 2 application for a CPG must stand legally on its own merits; no CPG can be issued for a public good that would be delivered by a future project that currently only exists as a concept, for which no application has been submitted to the PSB, and for which there is no guarantee that it will ever be formally proposed or actually constructed.

As is so often the case, our Constitution does give us clear guidance: Private property rights are constitutionally protected, subject to public use when required by necessity. We should, as Vermonters, guard our constitutional rights with care and vigor. In this case, there is no public use, no necessity, and private property rights should prevail.

The ANGP Phase 2 application (Docket 8180) is before the PSB now. I urge you to help protect the property rights not just of the residents of Cornwall and Shoreham, but of all Vermonters —because our constitutional rights are only as strong as our affirmation of them not for ourselves but for others who are under duress. Like the mutual aid agreements that keep our volunteer fire departments going, we need to “turn out for Cornwall and Shoreham.”

I urge you to write to the following people and tell them cordially but clearly that you oppose ANGP Phase 2 (Docket 8180): James Volz, Chair, Vermont Public Service Board; Chris Recchia, Commissioner, Vermont Department of Public Service; and Peter Shumlin, Governor.

ANGP Phase 2 may appear to some as “free money,”but it comes at far too high a constitutional price.

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For the record, while I do serve in the Vermont Senate, I submitted this commentary, and a longer more formal comment to the PSB, as a citizen of the state, not as a legislator.

Christopher A. Bray, New Haven

Editor's note: This letter was slightly changed since it was originally posted to correct an editing error. 

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Addison County Independent

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Middlebury, VT 05753

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