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In fight over local pipelines, US usually gets its way

Hundreds protested against the West Roxbury pipeline in July.
Hundreds protested against the West Roxbury pipeline in July.Dina Rudick/Globe Staff/file 2015

Mayor Martin J. Walsh and other critics of new natural gas pipelines just learned a lesson: What the Federal Energy Regulatory Commission approves, it usually gets.

The city's loss of a lawsuit last month — an effort to stop Spectra Energy of Houston from building a pipeline spur in West Roxbury — is a reminder that state and local governments have few legal or regulatory options when it comes to interstate pipeline construction once the federal agency gives its blessing to a project.

The FERC's broad powers to override local authorities, as in the West Roxbury case, will be closely monitored in Massachusetts and the rest of New England over the next 18 months, as energy companies and utilities seek to build multibillion-dollar pipelines throughout the region to meet growing demand for natural gas and transmission lines to transport hydroelectricity from Canada.

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"At the end of the day, it's FERC's decision whether to proceed with any project," said Andrew Kaplan, a partner and energy attorney at Pierce Atwood LLP in Boston. "After they decide something, things start to move fast."

Under the federal Natural Gas Act of 1938, the FERC is charged with regulating interstate pipelines, with the power to preempt state and local objections. Its pipeline authority is similar to what's granted to the agency in the Federal Power Act, which also dates to 1938 and governs the wholesale finances and rates of interstate power lines.

The blunt intent of both acts: Get energy projects built across state lines, without state and local governments blocking upgrades deemed vital for regions or for the country.

"It's not such a bad thing," said Tim Boersma, an energy specialist at the Brookings Institution, a Washington think tank. "You need to have someone making the assessments and final decisions on these things, or nothing would get done."

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The FERC has a powerful tool to enforce its rulings: Projects approved by the agency can take property under US eminent domain powers. That was the issue in the West Roxbury lawsuit. Residents and politicians expressed concerns about burying pipelines close to a quarry where, opponents say, dynamite explosions often occur. But those concerns didn't caryy the day.

In July, Spectra sued the city in federal court for not giving it easement rights — and won the case because of the FERC's eminent domain powers. Earlier this week, construction on the spur got underway. The city does not plan to appeal the court ruling.

But US Representative Stephen Lynch, a South Boston Democrat, said the court was wrong.

"Sure, FERC has approved it, but by dismissing the serious concerns of the people I represent they poisoned the relationship for every other gas line project in my district," Lynch said. "I will do everything I can to prevent this pipeline from happening, as well as future projects that put my constituents at risk."

Though the FERC has been granted tremendous powers by Congress, energy specialists stress that the agency is not empowered to run roughshod over state and local concerns.

Indeed, the Natural Gas Act lays out stringent requirements that must be followed — from holding public hearings to requiring companies to submit specific economic and environmental data about a project — before plans can be approved.

In addition, the FERC must listen to objections raised by state and local governments.

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State and local officials and residents can sue if they believe the agency is not following the act's intent, legal specialists say.

In a statement, the FERC insisted that it "encourages everyone to make their views known through the many public comment processes available" and carefully weighs such comments. It added that it must also comply with the National Environmental Policy Act, which requires the agency to weigh environmental effects.

One of the projects the FERC will soon tackle is a proposal by Houston's Kinder Morgan Inc. to build a natural gas pipeline from upstate New York across Western Massachusetts and through Southern New Hampshire. That project has spurred intense opposition from local residents and politicians — and Kinder Morgan has made several changes to its plans as a result.

Curt Moffatt, deputy legal counsel at Kinder Morgan, said the FERC frowns upon companies that ignore the concerns of state and local authorities during the permitting process. "We've already made changes to our plans and any orders [from FERC] will have hundreds of conditions attached to them," he said.

Kinder Morgan is expected to file its pipeline proposal this year.

Spectra Energy and its partners, including National Grid and Eversource, are also expected to file plans this year for a major upgrade to the existing Algonquin pipeline.

Greg Cunningham, a senior attorney at the Conservation Law Foundation, said he doesn't believe the FERC is thorough in its final decisions, particularly on environmental matters. But he acknowledged that once the agency rules, it's hard to stop a project.

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"FERC is still the preeminent decider," he said. "There is no doubt about the preeminence of the federal government over states."

Natural gas pipeline opponents protested against the West Roxbury project in July. Construction on the spur got underway earlier this week.
Natural gas pipeline opponents protested against the West Roxbury project in July. Construction on the spur got underway earlier this week.Dina Rudick/Globe Staff

Jay Fitzgerald can be reached
at jayfitzmedia@gmail.com.