Atty. Gen. Maura Healey warns pipeline giant Kinder Morgan to respect state Constitution
When the Massachusetts Legislature refused last week to grant easements to the Tennessee Gas Pipeline Company (TGPC) for its Sandisfield pipeline project, the Company had its response ready to go. It immediately filed suit in Berkshire County Superior Court, seeking condemnation of the existing easements and an injunction allowing workers to enter the Otis State Forest.
Attorney General Maura Healey issued this statement through her spokeswoman, Chloe Gotsis: “Our state Constitution protects conservation land across Massachusetts, including Otis State Forest. Any company with plans to build on or repurpose state-protected land has an obligation to fully comply with the requirements set forth in our Constitution.”
The Sandisfield Taxpayers Opposing the Pipeline, or STOP has already filed a motion to stay the Federal Energy Regulatory Commission’s (FERC’s) approval of the project.
Article 97 of the state Constitution, adopted in 1972, states that “the people shall have a right to clean air and water…and the natural scenic, historic, and esthetic qualities of their environment,” with the fulfillment of these rights to be carried out through [state] parkland acquisition and conservation.
Land can only lose its conservation status if 2/3 of both the state Senate and House of Representatives vote to change it, and the so-called “disposition request” is signed by the Governor.
In addition, as a matter of policy, the Executive Office of Environmental Affairs (EOEA), Division of Conservation Services (DCR) requires the entity seeking to remove protected land status to file an Environmental Notification Form with EOEA’s Massachusetts Environmental Protection Act (MEPA) Unit.
Moreover, if the property was either acquired or developed with grant assistance from the DCR, the converted land must be replaced with land of equal monetary value and recreational or conservation utility.
TGPC is moving forward to convert land in the Otis State Forest and the adjoining 62-acre Lower Spectacle Pond to add a 3.8-mile, 36-inch diameter loop to an existing natural gas pipeline.
The Otis State Forest was purchased by the state in 2007. Gov. Deval Patrick said at the time, “The purchase of this spectacular property ensures its lasting protection and is an example of our prudent investment in the Commonwealth’s rare and irreplaceable natural resources.”
The $5.2 million dollar purchase was intended to preserve in perpetuity land that contains a 400-year-old eastern Hemlock old growth forest, rare plant and animal species, historical sites, mature deciduous woodlands, rolling meadows, and the 62-acre Lower Spectacle Pond.
Representative Peter Kocut (D-Northampton) and Senator Joan Lovely (D-Salem) attempted to bring TGPC’s easement-transfer bill to a vote. The effort fizzled, however, and HR 3690 was recommended for further study by the Joint Committee on State Administration and Regulatory Oversight.
The Department of Conservation and Recreation has refused to voluntarily cede the easements to TGPC, a subsidiary of energy titan, Kinder Morgan.
Currently, there are two underground natural gas pipelines in the area. The project would add a third, and would widen the existing corridor by “10 – 35 feet,” according to the TGPC.
Kinder Morgan spokesman, Richard Wheatley, said, “we’ve been trying for two years to get the easements. We need to begin cutting trees as soon as possible.”
The TGPC court filings state that, in order for the pipeline to be operational in winter 2016-2017, construction needs to be completed by November 2016.
Under federal Fish and Wildlife Department guidelines relating to the Endangered Species Act, tree clearing must only be done between October 1 and March 31. The filings also say, however, that TGPC has applied for an extension that would allow them to clear trees until May 1, 2016.
On March 11, the Federal Energy Regulatory Commission (FERC) issued a Certificate of Public Convenience and Necessity to TGPC for its Connecticut Expansion pipeline project, which includes the stretch through the Otis State Forest.
Gas for the new pipeline is “fully subscribed,” according to the court filings. Southern Connecticut Gas Co., National Gas Co., and Yankee Gas Service Co. all have contracts.
Both state Sen. Benjamin Downing and Rep. William “Smitty” Pignatelli have opposed the pipeline vigorously. At the State House in November, both spoke strongly against the pipeline to an overflow crowd.
Pignatelli said, “We’ve been FERC’ed!” when he heard in March about the pipeline approval. He also said, “there is no doubt in my mind” that FERC will approve the 412-mile Kinder Morgan Northeast Energy Direct (NED) pipeline if a “little loop in southern Berkshire County that has no benefit to anybody in Massachusetts” cannot be stopped.
There are a number of Article 97-protected land parcels along the NED route, and removal of the Otis State Forest from constitutionally protected status would provide a disastrous precedent, in the opinion of conservationists and others.
The Natural Gas Act of 1938, the authority for the Connecticut Expansion project, provides for preemption of state and local laws and regulations.
It is not clear, however, whether a provision of a state constitution can similarly be preempted. Although TGPC references in its legal filing certain instances in Ohio and Louisiana when the Natural Gas Act trumped those states’ constitutions, the Massachusetts Article 97 provisions have never before been challenged.
STOP points out in its filings, TGPC has not secured the necessary permits from the Army Corps of Engineers under the Clean Water Act section 404 or State Water Quality certifications under the section 401 for the proposed work.
The Clean Water Act is a federal statute, and some courts have held that, as such, the Natural Gas Act does not preempt it.
TGPC received a Certificate for the project under the Massachusetts Environmental Protection Act last June from the Secretary of Energy and Environmental Affairs, Matthew Beaton.
The Company’s Court filings include a commitment to post a bond for $551,880, which, they state, “is equivalent to the amount the Commonwealth has agreed to by way of the mitigation package ($539,280) plus a good faith estimate of the fair market value of the permanent easements.”
Editor’s Note: This posting replaces an earlier version of this story by clarifying the status of the Attorney General’s office in this matter. So far, the Attorney General’s Office has not formally filed a motion to oppose the pipeline extension through Otis State Forest but has declared its intention to defend the Commonwealth’s interests as contained within Article 97 of the state Constitution.