New Pipeline in the Pipeline for Western Massachusetts: Federal Law

According to TV and print media, a new natural-gas pipeline might soon stretch 250 miles across northern Massachusetts, winding its way under a dozen or so towns in Berkshire and Franklin Counties.

The extension depends on several factors, including whether the pipeline owner (Tennessee Gas Pipeline Company) will get federal approval for its expansion plans. Although the pipeline might stay within the limits of current utility easements, some property-owners may be wondering what happens if the company ends up needing more land. This is one of those rare occasions when the law provides a short, clear answer: eminent domain.

Although the project would generate hundreds of construction jobs, a unanimous Bay State welcome seems unlikely. Environmentalists will point to the impact of fossil fuels on the climate and perhaps abutters will raise concerns about possible leaks and explosions. Some property-owners might be inclined to hold out, for reasons of high-mindedness or high expectations. Whatever their differences of opinion and interest, proponents and opponents alike should note that a federal law, the Natural Gas Act, gives pipeline owners an important advantage: if the company and the landowner cannot reach agreement the company can simply take the land, exercising a power usually reserved to governments as opposed to private actors. Here is a link to the relevant provision of the statute: 15 U.S.C. §717f(h).

In enacting this statute, Congress created a comprehensive national framework. So claims and objections based on state laws – even on state constitutions – cannot stand in the way of a natural-gas pipeline. 

The company cannot engage in any takings quite yet. First it has to obtain a certificate of “public convenience and necessity” from the Federal Energy Regulatory Commission. But potential holdouts, beware:  From that point onward, armed with its certificate, Tennessee Gas Pipeline Company would have the right to take what it needs by eminent domain.