I am writing in response to the piece by Mary Douglas in the May 6 Edge, entitled, “State looked the other way as chainsaws make way for pipeline in protected forest.”
I would first like to thank Mary Douglas for her historically excellent coverage of the Otis State Forest pipeline project. Her previous columns have been intelligent and informative.
However, I take issue with the assertion in her recent piece, dated May 6th, that the Legislature “took a pass” on standing up for Otis State Forest and, by extension, all state-owned preservation land. In other words, she says that we were in a position to halt the pipeline and we chose turned our back on the issue. This couldn’t be further from the truth, and the piece submitted by Mary to The Berkshire Edge seems to me to be an opinion piece, although it was not labeled as such.
Over the past several years, I have worked closely with the Attorney General, former Sen. Ben Downing, and other key stakeholders on how the State Legislature could best protect Otis State Forest and other state preservation land from natural gas pipeline construction. Although we were unable to stop this project, we have managed to protect the state’s ability to fight to protect future land from being seized for pipeline construction and we have been able to negotiate and establish a precedent for the enforcement of Massachusetts’s “no net loss” policy.
Let me bring you through an abbreviated sequence of events:
I was approached by Kinder Morgan over two years ago, asking me to file special legislation which would give them the right to build the pipeline through this state-owned preservation land. I politely but strongly asked them to leave my office. Former Senator Downing gave them a similar answer.
Because neither one of the legislators which represented that area of the state would file the legislation, Kinder Morgan found a powerful member of the Legislature who represents a distance over 120 miles away from Otis State Forest to file the bill on their behalf.
It was a very real concern that, if the bill had been brought to the floor for a vote, it could have passed, and we then would have lost all ability to stop the pipeline. Still, the bill never made it to the floor because the Committee on State Administration and Regulatory oversight sent the bill to study. In other words, they killed the bill. The fact that the bill did not even receive preliminary approval to move to the floor sends a clear message that the Massachusetts Legislature had no interest in handing over one of the state’s few remaining old growth forests and a spectacular natural resource to a profit-driven natural gas company.
Mary contends in her May 6th piece that, after Judge Agostini’s decision which allowed Kinder Morgan the power to proceed, the Legislature should have revived the bill and brought it to the floor to be voted down. Presumably, the case for the state’s right to prevent Kinder Morgan from constructing the pipeline in Otis State Forest could then have been further challenged.
However, the case for the state to protect Otis State Forest rests on a portion of the Massachusetts Constitution, Article 97, which is unique among state constitutions. Article 97 dictates that “the people shall have the right to clean air and water…and the natural, scenic, historic, and esthetic qualities of the environment” and that the Legislature, in the interest of protecting our natural resources, may acquire land for protection purposes. That land may then only be transferred for non-preservation purposes by a two-thirds vote by the Legislature, an intentionally very high threshold. The power of this Article to stand up against the federal government’s right to seize land for the purpose of ensuring that the country has access to a reliable power supply has never been challenged in federal court.
If the Otis State Forest case had gone to a higher court and lost, that would establish precedent for the entire state. Essentially, it would make us completely powerless to prevent future infringements on our as-of-now still constitutionally protected land. I cannot overstate the impact of setting that precedent, and there is a real possibility that, with the specific circumstances of Otis State Forest, which already contains two active, existing natural gas pipelines, there was a real possibility that we could have lost.
Therefore, after consulting with the Attorney General and others, we decided that the Legislature had made its position clear and we could best serve to protect the Commonwealth’s natural resources by negotiating for Kinder Morgan to honor Massachusetts’s “no net loss” policy. This non-statutory policy states that, when preservation land is transferred for non-preservation use, the state will be compensated to acquire similarly valuable state land. Although the trees being cut now by Tennessee Gas are fundamentally irreplaceable, and I wish that we could have done more, I fundamentally stand behind the choices that we have made over the past several years in relation to this issue.
I am disappointed in FERC’s decision, and I have said that we have been “FERC’d” on multiple occasions. While I appreciate that our federal delegation sent letters asking FERC to reconsider, I wish that they had done more to demand answers to the concerns of the town, the environmental advocates and all concerned citizens.