Vermont's Supreme Court heard arguments Tuesday morning in a case that will decide the fate of the Vermont Gas Systems pipeline to Addison County.
The court's decision will either clear the way for Vermont Gas to complete its 41-mile pipeline, or it will add yet another complication to the years-long project that's seen cost overruns and legal challenges repeatedly since the Public Service Board first approved it in 2013.
For all of its many details, the case boils down to a fairly simple question: Is it OK for the state to allow eminent domain to re-purpose public land for a new and different use?
Last year, the Public Service Board did just that, and gave Vermont Gas the rights to build its pipeline under Geprags Park, a public park in Hinesburg.
A group of Hinesburg residents challenged that ruling.
Their attorney Rob Woolmington said the Legislature can make that decision, but in this case it was wrong for the Public Service Board to let Vermont Gas have land rights.
“This court has repeatedly held that a specific grant of legislative authority is required before land dedicated to a prior public use can be taken by eminent domain,” Woolmington said in his opening argument.
But Vermont Gas argues that the pipeline isn't really changing the public's use of the park, because it will be installed underground, and the company is using underground drilling to install it — so the park doesn't even have to be dug up.
Jeff Behm argued the case on the company's behalf. He says he's not aware of precedent in Vermont courts for an instance like this, where the two uses of the public space wouldn't have an impact on each other — assuming the pipeline functions normally.
“None of our prior public use cases address the issue of whether a compatible use should be condemned,” Behm said.
Justice Harold Eaton asked Behm a question that drew some knowing nods from pipeline opponents sitting near their attorneys.
“I'd like you to tell us why this is compatible,” Eaton said to Behm. “What is the compatibility here between a public park and a gas line? It seems to me that that's different than a railroad and an electric line.”
Vermont Gas says those two uses are compatible because if all goes according to plan, people can use the park for nature walks and bird watching just as they have before.
Opponents warn that any problems with the buried pipeline could mean Vermont Gas has to dig up land within the park. That would affect the public's use of the land, Woolmington said. “And so whenever there's a conflict between the maintenance obligations of the pipeline, or a public health and safety issue, the pipeline wins. The existing public uses are going to have to give way for that.”
The court will now decide if it was appropriate for the Public Service Board to grant building rights for the park to Vermont Gas, or if that's a policy priority that the Legislature has to set instead.