Eminent Domain MA DPU & FERC


For information on the recent Kinder Morgan Pre-Filing with FERC, please visit nofrackedgasinmass  here

MA Department of Public Utilities – Petitions for Access to Survey

Please note – If you have given your permission, you can still rescind it. Download a Letter to Rescind (pdf) or Letter to Rescind (Word)
Otherwise, the company can start surveying anyone’s property who has given permission. If they do not have your permission then they can not do anything until they have a DPU-issued-order.

Property owners across the state have received a letter similar to this: NEEP GROTON and PEPPERELL SAMPLE MASS DPU LETTER of April 21

What this means –

When a property owner is approached asking for permission to survey their land, they have the right to decline access to their property. Should Kinder Morgan/TGP decide to do so, they can file a request for access through the Massachusetts Department of Public Utilities “to enter upon the lands of any person or corporation for the purpose of making a survey preliminary to eminent domain proceedings” (please refer to Massachusetts General Laws, Chapter 164, Section 72A and Section 75D for more information).

As of June 9, per DPU, “Since Kinder Morgan/Tennessee Gas Pipeline, LLC has not filed a petition, the DPU does not know what the process would be.”

However, DPU has advised, “If Kinder Morgan/Tennessee Gas Pipeline, LLC were to file a petition with the DPU, the DPU would afford affected landowners and others an opportunity to be heard.”

More details will be forthcoming as provided by DPU.


To search DPU Docket for Filings Relating to Permission to Survey Land, click here and select “SITING/DTE”. Enter “Tennessee,” “TGP, or “Kinder Morgan” to scan the docket.

For additional information, please visit Department of Public Utilities (DPU).
Click here for Siting Division Contacts

Or Contact the DPU at:
Department of Public Utilities

One South Station
Boston, MA 02110
Telephone: (617) 305-3500
Fax: (617) 345-9101


The Federal Energy Regulatory Commission – FERC

Should the DPU grant access to survey to Kinder Morgan/TGP, they would next seek to obtain a ‘certificate of public convenience and necessity’ from the Federal Energy Regulatory Commission (FERC)

“The Federal Energy Regulatory Commission, or FERC, is an independent agency that regulates the interstate transmission of electricity, natural gas, and oil. FERC also reviews proposals to build liquefied natural gas (LNG) terminals and interstate natural gas pipelines as well as licensing hydropower projects”

‘Under Section 7(c) of the Natural Gas Act of 1938, the Federal Energy Regulatory Commission (FERC) is authorized to issue certificates of “public convenience and necessity” for “the construction or extension of any facilities … for the transportation in interstate commerce of natural gas.” Thus, companies seeking to build interstate natural gas pipelines must first obtain certificates of public convenience and necessity from FERC.

…Through this process a developer notifies all stakeholders—including state, local, and other federal agencies, and potentially affected property owners—about a proposed project so that the developer and commission staff can provide a forum to hear stakeholder concerns.’ (source)

‘In the Policy Statement, the Commission explained the analytical steps it will use to evaluate proposals for certificating new construction. In this analysis, the threshold question applicable to an existing pipeline’s proposal is whether the project can proceed without subsidies from its existing customers. The next step is to determine whether the applicant has made efforts to eliminate or minimize any adverse effects the project might have on its existing customers, existing pipelines in the market and their captive customers, or the economic interests of landowners and communities affected by the route.’ (source FERC PL99-3-002)

‘In the Policy Statement, the Commission explained that as the natural gas marketplace has changed, the Commission’s traditional factors for establishing the need for a project, such as contracts and precedent agreements, may no longer be a sufficient indicator that a project is in the public convenience and necessity. The Commission, therefore, changed its policy….(to determine if) there is sufficient support for the project and whether the project is financially viable. The Commission established a threshold requirement that the pipeline must be prepared to financially support the project without subsidy from its existing shippers.This will usually mean that the pipeline would have to price the project using incremental rates in which the full costs of the project are recovered solely from the shippers subscribing to the new capacity. Under this policy, the pipeline and its expansion customers could share the risks of the project, but they could not shift any of those risks onto existing customers.

…The removal of the subsidy is necessary to ensure that the market finds the project is viable because either the pipeline or its expansion shippers are willing to fully fund the project. Having lower prices subsidized by existing customers can lead to overbuilding as new customers are willing to subscribe to the capacity only because the price of the capacity is subsidized.’ (source FERC PL99-3-001)

From massPLAN.org:

“— Denying permission to survey is not the same as refusing to negotiate an easement (and risking the right-of-way being taken by eminent domain, discussed below).  Allowing permission to survey does not strengthen your bargaining position.

— If TGP receives that FERC certificate, the company can take property by eminent domain. (Source)


See also –

Permitting Process for an Interstate Natural Gas Pipeline – From the Northern Middlesex Council of Governments (NMCOG)
Frequently Asked Questions (FAQs) – Gas Pre-Filing (ferc.gov)
An Interstate Gas Facility on My Land? What Do I Need to Know? (ferc.gov)

Terms You Should Know

  • Eminent Domain – the governmental right to take private property for public use upon the payment of just compensation.
  • Condemnation – the exercise of the power of eminent domain by the government.  Therefore, condemnation is the process of taking private property through the authority of eminent domain.
  • Taking – the actual land and rights being transferred from the condemnee to the condemnor.
  • Condemnor – the entity doing the taking.
  • Condemnee – the private property owner whose property is being taken.
  • Loss and Damages – compensation given to the condemnee for the monetary loss and damages to their property caused by the taking. (source)


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