Berkshire judge says pipeline giant Kinder Morgan can’t ignore state constitution
Pittsfield — Though Kinder Morgan subsidiary Tennessee Gas Pipeline Company wants to hurry into a constitutionally protected and rare, old-growth area of Otis State Forest in Sandisfield to start cutting trees for its pipeline storage loop, Thursday’s (March 31) hearing in Berkshire Superior Court gave early hints that the company might not have such an easy time using their usual eminent domain strategies to roll over little Sandisfield, not to mention the state.
Judge John A. Agostini moved a preliminary injunction hearing originally scheduled for March 31 to April 15 at 1 p.m.
A section of forest along an already established pipeline route would have to be cut to make way for a third, 3.8-mile pipeline loop that will serve Connecticut. This requires easements on land now owned by the state and protected by its constitutional Article 97, which legislates residents’ right to a clean environment, and gives the state the ability to purchase land for that reason. While the U.S. Department of Fish and Wildlife says the company must cut between October 1 and March 31 to avoid disrupting nesting among other wildlife habitat issues, the company said it had applied for a May 1 extension, though that has not yet been granted, and may push cutting into the fall.
The situation in Sandisfield is fast becoming a precedent-setting testing ground for the power and teeth of Article 97 of the Massachusetts Constitution. That’s why the Attorney General is now involved and got an extension last week on Kinder Morgan’s motion to get those easements and begin work. And while yesterday’s court hearing was mostly procedural, there were clues that Kinder Morgan won’t be able to sweep pesky Article 97 aside.
“Any decision will echo and have grave implications,” said Assistant Attorney General Matthew Ireland in response to Kinder Morgan attorney James Messenger’s claim that “the Commonwealth isn’t going to experience any injury” if the company proceeds quickly, whereas “injury to the pipeline company” may be “significant.”
Messenger further said that unless every thing it needs to proceed is wrapped up by June 1, the whole project could be jeopardized.
The Federal Energy Regulatory Commission (FERC) also put the brakes on the easements by telling Kinder
Morgan it needed more information about the company’s adherence with local and state rules. The company has not yet, for instance, gotten the green light from the Department of Conservation and Recreation (DCR), which manages the land in question, nor 401 Water Quality Certificates from MassDEP or the Connecticut Department of Energy and Environmental Protection.
Rep. Garrett Bradley (D-Hingham) introduced legislation in 2015 to strip Berkshire and Hamden Counties of conservation protection. But to do so takes 2/3 vote of both the Senate and House of Representatives. Messenger told the court the company had been waiting for two years to have the bill considered.
Mass Audubon says the “the proposed pipeline would permanently degrade and fragment” Spectacle Pond, a pristine and critical part of the area. Ireland told the court that Mass Audubon, which is filing an amicus, or friend of the court brief, “has expended tremendous resources” to acquire the pond, which is adjacent to where the cutting is to take place and possibly stands to suffer from runoff, and the company’s plans to draw water from it to test pipes.
Agostini said he didn’t want this to “drag out,” and at first wanted to set the next hearing to April 11. But Ireland asked for a few more days so all parties could have more time to submit information to the court about the impact of cutting.
Messenger said this was a “gotcha, Catch-22” delay tactic to “derail the project,” and a “standard argument” in such cases. “If we can’t get possession, we can’t get the permits–if we can’t get the permits, we can’t get possession,” he said, adding that “it will cause Tennessee Gas significant financial injury” if everything isn’t “all in place by November 1…Connecticut residents and businesses are the beneficiaries and won’t get the benefit. To get it done by November 1 we have to start on June 1.”
Ireland said since the company can’t cut until October 1 anyway due to state regulations and the necessary permits, there was no need to rush cutting that may cause “real harm to migratory birds…bats… this is why FERC is wondering…” Ireland further said that cutting soon and leaving felled trees in place until all the arrangements are sewed up presented “real issues” for MassDEP concerning erosion or water quality.
Ireland said jumping ahead of MassDEP could cause “irreparable environmental harm to the Commonwealth.” He added that the state was “moving promptly on this issue.”
Agostini asked Messenger what Tennessee Gas does next if it succeeds in gaining possession of the land. Messenger said the next step is compensating landowners. And if not? Messenger told Agostini he wasn’t sure, that he has never “seen one denied.”
Agostini said it appeared that FERC was acknowledging the Article 97 problem, by allowing “the Commonwealth to bring Article 97 into play.”
Messenger said the federal Natural Gas Act might override Article 97.
But, Agostini continued, FERC spends “all this time talking about Article 97.”
“It is central to this case,” Ireland said. “It is unique in the U.S. … it resonates beyond this particular pipeline.”
“A state can just stop everything dead [with Article 97]?” Agostini wondered.
Ireland said no, that there was the “potential for rerouting,” that it doesn’t always stop a pipeline, and that the Legislature does allow Article 97 easements.
“This is why FERC is so concerned,” Ireland added. The agency, he said wants full compliance with all local regulations. He noted the bill in the Legislature, now in study, could still be voted on. If that doesn’t happen, he said, “does the Natural Gas Act preempt the Massachusetts constitution?”
“They’re saying,” he added, “ ‘we have a tree cutting deadline so we need not bother with the Massachusetts state constitution’.”
Messenger reminded the court of the U.S. Supremacy Clause and a precedent set by an Algonquin Incremental Pipeline case where in September 2015 a federal judge allowed Algonquin to take possession of portions of three Boston streets.
Agostini said it appeared to him Article 97 had to be addressed, but asked, “does the Supremacy Clause take it right out of play?”
“The standard position of FERC is that you get rights by agreement or condemnation,” Messenger said.
Ireland said he would file a motion for summary judgment with a “neutral statement of the legal issues.” Agostini asked that he file by April 8 to give Tennessee Gas time to prepare.
And while Ireland said while he preferred the hearing be in Berkshire County, he was willing to have the hearing in Springfield to give his office and Audubon more time, since Agostini would be there on the dates Ireland had suggested. Agostini said it was important to keep it in Berkshire County, since this is where the land in question is, and because it might be a “burden” for residents to travel to Springfield. He pushed it to April 15, “given how important this is.” He said he, too, needed more time to read everything.
After the hearing, attended by a handful of Kinder Morgan lawyers, Sandisfield officials, and state Rep. William “Smitty” Pignatelli (D-Lenox), Pignatelli said he was “impressed by the Attorney General’s office,” and by Agostini’s “recognition of the importance of Article 97.”
Pignatelli has been an ally to Sandisfield in their attempts to deal with the energy giant’s encroachment and power, and has decried FERC for originally allowing the company to proceed without following local rules. He noted Kinder Morgan’s “dismissive” attitude that “permits are irrelevant.”
He further said Messenger’s argument that Tennessee Gas has waited two years for the legislature to address the bill to remove the land conservation is “not true.” The bill, he said, was filed in July 2015, and a hearing held in November. Meanwhile, Pignatelli said, the bill “was sent to study” while the legislature is “still waiting” for endangered species habitat and water quality information from Kinder Morgan.
Sandisfield Town Administrator Alice Boyd says a town with 800 residents has already spent $40,000 it doesn’t have on lawyers to negotiate with Kinder Morgan’s lawyers. She says the town is “out of money” for legal fees, though the company has promised to reimburse it.
Boyd said the town’s lawyers, from the firm BCK Law in Newton, told her they think this case could land in U.S. Supreme Court on account of Article 97.
“Little old Sandisfield could be precedent-setting,” she said. “Who would guess?”