Conway lawyer offers to help Deerfield fight gas pipeline
Attorney Cristobal Bonifaz of Conway meets with the Deerfield Board of Selectmen at the end of its Aug. 20 meeting. Purchase photo reprints »
DEERFIELD — A lawyer from Conway has offered his assistance to the town of Deerfield in its fight to stop the proposed Tennessee Gas Co. pipeline project.
Cristobal Bonifaz made the offer during a standing-room-only special meeting of the Board of Selectmen Wednesday night, which was called for the purpose of discussing and voting on a resolution to oppose the pipeline similar to those passed in other Franklin County towns.
“I noticed Kinder Morgan isn’t here, and I think I have a way to get them here,” said David Gilbert-Keith, a member of the Energy Resources Committee who introduced Bonifaz. “And that is for you to put on your different hats that you all wear. The Board of Health enforces state laws in town.”
Bonifaz elaborated, noting that because Deerfield’s Board of Selectmen also serves as the town’s Board of Health, it could hold a series of public hearings in that capacity to discuss possible risks to health and safety posed by the pipeline. This, he said, would allow them to decide that the pipeline poses a threat to public health and prohibit it from crossing through town.
According to Bonifaz, precedent set in the 1986 Massachusetts Supreme Court case Arthur D. Little v. Cambridge, which held that Cambridge’s Board of Health had the authority to ban anthrax research within the city, showed that boards of health were given unlimited power by the legislature to stop any activity in a town viewed as possibly harming the residents of the town. The case’s ruling, he said, was upheld in two subsequent Massachusetts Supreme Court cases.
“The issue is this: the Board of Selectman doesn’t have any power over Kinder Morgan, but the Federal Energy Regulatory Commission is going to preempt them. However, the Board of Health nobody can pre-empt,” said Bonifaz. “The law is firm and clear. If the Board of Health were to hold a hearing dedicated only to safety and health issues and, after the hearing was conducted, the board were to decide that the health and safety of the pipeline would be an impact on the town, they could simply rule that they don’t want it in Deerfield. The Supreme Court said that this is an absolute right of the town to do this.”
In a letter to Rep. Stephen Kulik, D-Worthington, Bonifaz said he has previously helped prevent a coal power plant from being built in Lee by using a similar argument.
“It happened in Lee, and the government, everyone, had to back off,” Bonifaz said.
According to Gilbert-Keith, Bonifaz has helped fight the actions of Chevron in Ecuador as well as other cases involving environmental issues and holds a doctorate in chemical engineering from the Massachusetts Institute of Technology.
Bonifaz noted that it is costly to the town to run a hearing and offered to help the town raise money to pay for it.
Bonifaz said that while he does not think Kinder Morgan would sue Deerfield if it took such an action, he has attorneys that would help defend the town.
“The offer is on the table, and if you want to take it, we’ll work with you guys and be happy to do it,” Bonifaz said.
When Selectman Mark Gilmore noted that the town of Lee had waited until late in the permitting process to try to stop the power plant and asked Bonifaz when the best time would be to have a hearing, he replied “the sooner, the better.”
At the conclusion of Bonifaz’s comments, the board decided to take his offer and scheduled a Board of Health hearing for Sept. 9. According to Carolyn Shores Ness, the board’s chairman, a notice of the hearing will be sent to Kinder Morgan. Thus far, Ness said, the town has received no response from the company in spite of numerous requests for meetings from town officials.
“The Board of Health does have teeth, he’s absolutely correct and if this is enough to make them go someplace else, then that’s what we want to do,” Ness said. “The more public we are about it, to schedule it and do this, maybe we’ll encourage them to go somewhere else faster.”
After Bonifaz was finished, many of those in attendance took the floor to speak about their concerns regarding the project.
Deerfield resident Jack Rosenblum took the opportunity to express his excitement about Bonifaz’s offer.
“I’ve learned something new tonight, which is if the health board says ‘No,’ says that it doesn’t want it, then we do not have to argue about whose parcel is going to get screwed,” said Rosenblum. “Basically, we have a way now of saying, ‘None of them are going to get screwed.’ We can really do the job instead of just making a gesture, and I’m very excited about that.”
At the end of the meeting, the board voted unanimously to approve and sign the resolution that was the original intent of the meeting, eliciting a round of applause from most of the audience.
Local governments have no say over the envisioned $3 billion to $4 billion pipeline, and while the state Legislature may have some say over its route, it is the Federal Energy Regulatory Commission that is the agency that licenses such interstate energy projects.
The currently proposed 300-mile route cuts through Conway, Ashfield, Shelburne, Deerfield, Montague, Erving, Warwick, Orange and Northfield.