While state residents have been focused on the massive Spectra Energy Access Northeast pipeline and Kinder Morgan’s now suspended Northeast Energy Direct, the much smaller Connecticut Expansion pipeline in tiny Sandisfield, which Kinder Morgan wants to construct in the pristine, constitutionally protected Otis State Forest, has quietly precipitated a significant state-federal legal battle.
Summarizing the issue in her brief defending the conservation status of the land, the Massachusetts Attorney General said, “Whether a FERC Certificate [of Public Convenience and Necessity] preempts [i.e., overrides] a state Constitutional provision like Article 97 is, to our knowledge, a question of first impression raising important issues about state sovereignty and the balance of federal and state power over a state’s right to protect and control its sovereign territory.”
In his May 9 opinion, however, Associate Justice John A. Agostini of the Berkshire County Superior Court sided with Kinder Morgan subsidiary, Tennessee Gas Pipeline Co. (Tennessee), holding that the Natural Gas Act preempts Article 97 of the Massachusetts Constitution. Justice Agostini stayed his order until July 29, so that an appeal could be filed or a legislative vote could be taken during the current session, which ends July 31.
Article 97, adopted by Commonwealth voters in 1972, provides that land can be purchased and preserved in perpetuity, and can only be removed from protected status by vote of a supermajority of the state legislature (two-thirds vote of each house). The Otis State Forest – a 900-acre jewel of old growth forest containing trees more than 400 years old, rare animal and plant species, rolling meadows and Lower Spectacle Pond –was purchased in 2007 by the Massachusetts Department of Conservation and Recreation (DCR) with help from the Audubon Society, and is protected under Article 97 of the state Constitution.
The Natural Gas Act, however, explicitly preempts state and local regulations with respect to construction of interstate natural gas pipelines. As Justice Agostini said, “The Supremacy Clause [of the U.S. Constitution] is about allocating power between the federal and state governments with preemption the glue that ties the states together in a federation.”
To make matters more confusing, in a March 25 order, the Federal Energy Regulatory Commission encouraged Tennessee to “make a good faith, reasonable effort to cooperate with state and local agencies.”
In his opinion, Justice Agostini effectively built a wall composed of citations to numerous preemption cases, all of which support the Supremacy Clause of the U.S. Constitution, and would trump the Massachusetts Constitution. The wall of cases is not without its chinks and vulnerabilities, however. Several issues could provide the basis for a successful appeal of Justice Agostini’s decision by the Commonwealth.
The Berkshire County Superior Court itself anticipates that the meaning of FERC’s “Kumbaya” language will likely be appealed
In the Certificate of Public Convenience and Necessity (Certificate) granted to Tennessee by the Federal Energy Regulatory Commission (FERC), the agency stated, “The Commission encourages applicants to cooperate with state and local agencies regarding the location of pipeline facilities, environmental mitigation measures and construction procedures….A rule of reason must govern both the state and local authorities exercise of their power and an application’s bona fide attempts to comply with state and local requirements.”
To this, Justice Agostini responded, “The motivation and purpose of this provision is not clear…[and] the significance of this ‘Kumbaya’ language in the Certificate [may] be reduced to a legal argument for the appellate court.”
The Court’s uncertainty is understandable because FERC and the courts have treated pipeline applicants inconsistently, sometimes requiring good faith efforts to comply with state and local requirements, and sometimes not.
A recent law review article titled, “How FERC Confuses the Role of State and Local Authorities in Regulating Certified Natural Gas Pipelines” points out that, “At times, FERC has invoked its preemptive authority and issued decisions overturning a state or local law or regulation…[but] in other instances, FERC has suggested that pipeline companies must comply with state and local laws and regulations, even after issuing [a Certificate].”
Not only is FERC inconsistent, but also, according to the law review author, federal courts have added to the confusion with inconsistent requirements of their own. The Attorney General quoted a 2014 decision from the U.S. Court of Appeals for the 8th Circuit to the effect that “Courts are split as to whether [the Natural Gas Act] contains an implied requirement of good-faith negotiations” when state and local laws conflict with a project.
In the Connecticut Expansion case, the FERC order of March 25 appears to go beyond mere encouragement to cooperate. In response to Tennessee’s request for a Notice to Proceed, FERC flatly stated that it needed “confirmation that [the company] would not cut trees in any area for which it had no easement, including lands protected under Article 97 of Massachusetts State Constitution.”
A reasonable interpretation of this language is that FERC is requiring that Tennessee obtain the supermajority vote of the Massachusetts legislature, and the necessary easements, before beginning work in the Otis State Forest.
Putting the legislative process into context, it is clear that supermajority votes to remove land from Article 97 are not at all uncommon. Ellen Anderson, of the East Quabbin Land Trust, wrote that seventy-five Article 97 land transfer bills were approved by the legislature between 1999 and 2004, according to data from the Environmental Lobby of Massachusetts.
More recently, the Massachusetts Pipeline-Awareness Network (MassPLAN) stated that so-called “disposition” of Article 97 lands (a term meaning removal from Article 97 protection) is not rare. “Happens all the time,” according to the group. “Rep. Kulik has disposition bills this session for land in Chesterfield (H. 3521) and Cummington (H. 3416). Rep. Harrington has a bill for land in Townsend (H. 3748).”
MassPLAN continued: “The Trustees of Reservations reports ‘in general, there are about 45-50 Article 97 conveyances each 2-year legislative session.’ A major difference: these bills have been introduced by the local legislators, while H. 3690 – the Otis State Forest bill – was introduced by a legislator from the other end of the state.”
State Rep. William Smitty Pignatelli, who has been a fiery and outspoken advocate for conserving the Forest, believes that a vote by Massachusetts lawmakers could strengthen the state’s case. “I think we should take action,” he said. It shows that we are committed to killing this project.” Rep. Pignatelli doubts that there are sufficient votes for removal of the protected status. A negative vote would advance the issue and clarify the Commonwealth’s position in a judicial appeal. (For an EdgeCast interview with Rep. Pignatelli, click here.)
The Berkshire Superior Court decision is premature as Tennessee has not obtained certification under the Clean Water Act
While the Natural Gas Act preempts many state and local regulatory requirements, the federal Clean Water Act effects a federal-state partnership to ensure water quality, so that state standards approved by the EPA become enforceable federal standards for that state and cannot be federally preempted.
The Massachusetts Department of Environmental Protection (DEP) must therefore issue a water quality certificate under section 401 of the Clean Water Act demonstrating that activities planned by Tennessee, such as tree cutting, will not adversely impact the waters of the United States.
In its March 25 information request to Tennessee, FERC asked the company to confirm that no Certification under the Clean Water Act 401 was required “for non-mechanized tree felling” that it wished to undertake.
The Massachusetts DEP vehemently disagreed that no Certification would be required, filing sworn affidavits to FERC stating that Certification was, in fact, needed and had not yet been granted. David Foulis, an Environmental Analyst for the Bureau of Water Resources of the DEP in Springfield, described some of the impacts that will result from the pipeline construction:
“The project will result in the temporary discharge of dredged or fill material into: 439,520 square feet of Bordering Vegetated Wetland; 16,988 square feet of Isolated Vegetated Wetland; and Worthington Brook in Agawam, and the associated tributary intermittent/perennial streams to the Clam River in Sandisfield…”
Mr. Foulis also stated that, before tree-cutting activities could begin, the Department of Conservation and Recreation (DCR) would need to issue a construction permit – which it has refused to do until the Legislature voted to remove the land from Article 97 status. The Bureau of Water Resources would need as well to issue a Forest Cutting Plan to avoid discharges into the wetlands, streams, brook and river.
Failure to comply with the Clean Water Act has consequences. On April 22, the New York Department of Environmental Conservation (DEC) denied the section 401 clean water permit for the proposed Constitution Pipeline.
The New York DEC stated, “Although DEC has granted certificates for other projects, the application by Constitution for these certificates fails to meet New York State’s water quality standards” that protect hundreds of streams, wetlands and other water resources on its route.
As with the Otis State Park project, FERC had issued the requisite Certificate to Constitution contingent on the state water permit.
Although the scale of the Constitution pipeline is massive compared to the Connecticut Expansion in Sandisfield, the principle is the same.
New York officials had the power to deny the 401 water quality permit based on the company’s inadequate mitigation plans. Massachusetts Water Bureau officials have apparently received no plans from Tennessee to avoid discharges into the Commonwealth’s waters, and the company has, similarly, not received the required 401 Water Quality Certification.
The Army Corps of Engineers has also not issued the required Clean Water Act 404 permit, which governs the discharge of materials that are dredged from streams and rivers in the course of construction.
Therefore, the Berkshire Court’s order granting the easement and injunction was arguably premature and, in legal parlance, unripe. An appellate court could overturn the injunction on this basis alone.
Access to begin the project is ineffective as U.S. Fish and Wildlife Service requirements will likely prohibit the company from starting until September 30
The U.S. Fish and Wildlife Service (USFW) prohibits tree cutting between April 1 and September 30 in order that nesting migratory birds and the Northern Long-eared bat are protected under the federal Endangered Species Act.
Although Tennessee had stated that it would receive an extension until May 1 to carry out its tree felling work, it did not, and, at this point, appears to have missed its window.
The Court’s conclusion that Tennessee would be irreparably harmed if it could not enter the property was therefore erroneous, as Tennessee is already prevented by the USFW.
Lurking in the background are questions about alternatives
Tennessee argued in its brief that, if Article 97 is not preempted, Massachusetts could block any and all pipeline projects, the very situation that the Natural Gas Act preemption is intended to prevent.
Responding to this argument, the Attorney General said, “This concern is overblown. Relatively few parcels of land in the Commonwealth are protected by Article 97… and those lands can be and often are avoided by route changes necessarily reviewed as part of the [required] alternatives analysis.”
The Massachusetts Final Environmental Impact Review (FEIR), proposed three alternatives to the Otis State Forest pipeline location.
One involved the addition of 3500 horsepower of compression at the Agawam Compressor Station as a substitute to the pipeline loop. The others proposed alternative routes that were ultimately considered to involve greater impacts than the route through Otis State Forest.
The compressor station, according to the FEIR Certificate, “would result in unacceptably lower pressures in the pipeline system, especially during periods of peak demand.” Yet, this seems to raise issues that are solvable. Could other measures, such as limited use of liquid natural gas, be used to meet peak demand? Have engineers adequately considered ways to fix the low pressure?
Questions arise about whether the alternatives analysis should be more critical and rigorous when Article 97 protections are at stake. Could FERC revisit the alternatives at this juncture at the request of an Appellate Court? Such questions are more policy issues than legal ones, but revisiting them could result in continued protection for the Otis State Forest, and, increased pipeline capacity as well.
Unless strong and creative measures are taken, state Rep. Pignatelli’s warning could come to pass:
“This has been the forgotten pipeline,” he said. “But it can’t be forgotten any longer because it could set a precedent in a very negative way.”
