Pipeline foes trying a new venue for appeal

BRISTOL — Bristol attorney Jim Dumont believes his latest salvo against Vermont Gas Systems’ Addison Natural Gas Project has the potential to stop the pipeline in its tracks.
Dumont asserts that the 41-mile natural gas pipeline being built from Colchester to Middlebury and Vergennes is a distribution project and hence belongs under the Act 250 land development umbrella; not a transmission project, which would rightfully be overseen by the Public Service Board.
As such, Dumont recently appealed to state officials charged with enforcing Act 250 for an opinion on whether they, indeed, should be regulating the building of the pipeline.
If he gets an affirmative response, and that survives appeals through the Vermont courts, then the Agency of Natural Resources would take over — from the Public Service Board — enforcement of Vermont law with regard to the pipeline.
Some consider the Act 250 process to be more transparent, more open to public input, and to have a clearer chain of appeals than utility regulation through the Public Service Board.
Act 250 is the landmark Vermont land-use law that regulates development with the goal of minimizing its adverse impacts on the environment. Enforcement of Act 250, administered by the Natural Resources Board, begins with one of the NRB’s nine local district commissions and proceed in a chain of appeal to the Vermont Environmental Court and the Vermont Supreme Court.
The Public Service Board is tasked with the regulation of utilities, including, in the words of a PSB “Citizen’s Guide,” “certain gas pipelines.” There is no avenue for appeal beyond the Public Service Board itself.
The Public Service Board granted Vermont Gas’s pipeline a Certificate of Public Good in December 2013 and has overseen all public decisions relative to its continuance. The public hearing process has sometimes been tumultuous, and last month the board even barred the public from a public hearing.
Dumont believes that citizen access and regulatory criteria would be quite different under Act 250 than under the PSB.
“The ability of citizens to participate in Act 250 is quite different from the ability to participate in front of the Public Service Board,” he said. “The issues that decide or will control the case are different under Act 250 than they are under Public Service Board statute.”
Determining whether the pipeline indeed belongs under Act 250 rests initially with Natural Resources Board District 1 Coordinator William Burke.
On behalf of clients from Monkton, Middlebury and Hinesburg, Dumont is seeking a “Jurisdictional Opinion” on which regulatory structure applies: Act 250 or Public Service Board.
Initially he contacted Addison County District 9 Coordinator Geoff Green, who recused himself. The case was then reassigned to Burke, coordinator for District 1, which covers Rutland County.
On Aug. 15, Dumont sent Burke a request for Jurisdictional Opinion.
While the letter breaks Dumont’s request into smaller subquestions, the most important is this:
“Does the entire ANGP (including the 75-foot-wide construction corridor, the many construction access roads and the many staging areas, and the trench-digging through numerous wetlands, for both the 41 miles of main line and the 5.1 miles of ‘distribution line’) and also all distribution improvements that VGS plans to construct and has contractually committed itself to construct (even though not treated by VGS as part of the ANGP) fall outside the definition of a natural gas facility as define in 30 V.S.A. S 248(a)(3) because all of these improvements consist of ‘distribution’ pipelines?”
In other words, does the entire Addison Natural Gas Project fall under the jurisdiction of Act 250 because it’s made up of distribution pipelines?
Dumont’s letter cites two cases as being particularly important, one from 2003 and one from 2008.
In the 2003 case, the Public Service Board ruled on a dispute between VGS and the Burlington Electric Department. According to Dumont, the PSB hearing officer found “all of VGS’s pipelines in Vermont are distribution pipelines” and the “PSB affirmed the hearing officer’s findings of fact and conclusions of law.”
In the 2008 case, Dumont said, “Vermont Gas signed an assurance of discontinuance, which is a consent decree that became a court order in 2008, which committed Vermont Gas to comply with Act 250 and submit Act 250 applications for distribution lines. They promised they would stop violating Act 250, in other words, and yet they are right now building what they say are distribution lines without an Act 250 permit. For example, the connection from New Haven to Middlebury is a distribution line according to them.”
Dumont explained the legal rationale in the 2003 decision.
“Under that analysis if a pipeline is a large pipeline … and it’s being used to transport gas across Vermont to a distant location and not provide gas to customers in the immediate vicinity of the pipeline then it’s a transmission pipeline,” he said. “If it’s doesn’t do that then it’s a distribution pipeline.”
Dumont continued, “I think that’s what the Legislature had in mind when they said the PSB has jurisdiction over transmission and Act 250 has jurisdiction over distribution.”
After receiving Dumont’s letter, the Natural Resources Board notified Vermont Gas, Public Service Board, Public Service Department and Agency of Natural Resources and gave them until Sept. 20 to respond. Dumont will then have until Sep. 30 for rebuttal. Burke’s decision can be expected later in the fall.
All documents are filed with the Natural Resources Board and can be seen online at http://tinyurl.com/hyzf6xz.
Any of the parties could then appeal Burke’s decision to the Vermont Environmental Court and ultimately the Supreme Court.
“This seems like a last-ditch effort to us from someone who has been involved in this process for the last severalyears and never once raised this issue,” Vermont Gas spokeswoman Beth Parent said earlier this week. “The 2003 case was not about jurisdiction. It was about cost allocation and rate design. The 2008 case focused on distribution networks, not transmission, so neither case is relevant.”
Parent continued, “Construction is going very well and the project is nearing completion but for one remaining parcel in Hinesburg. All eyes are on the families and businesses in Addison County so we can begin serving them with this cleaner, more affordable energy option.
“We will be filing our replies next month.”
Reporter Gaen Murphree is at [email protected].

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