Editor’s Note: This article first appeared in the Sandisfield Times.
In late May, thousands of healthy trees in a 4-mile swath through conservation land and wetlands were destroyed in order to build a parallel third [natural gas] pipeline through the Beech Plain section of Sandisfield. The aftermath resembled tornado damage. The downed trees will be hauled out and soon crews will begin working dawn-to-dusk, six or seven days a week, to dig a 7-foot-deep trench for the line.
Following nearly four years of struggle against a powerful company backed by laws and a Federal commission, it seems that now is an appropriate point to judge performances of the various participants and agencies that could have made more of a difference to avoid this calamity. As one who is directly affected, what follows is how I see things.
The Company. Houston-based Kinder Morgan, parent of Tennessee Gas Pipeline Co. (TGP), is an industry giant in the ranks of Exxon and Shell. As such, it is neither “greedy” nor making “obscene profits,” but merely operates like all other corporations in our capitalist system under the laws and established conventions. Think of it as a top-of-the-food chain predator, not unlike the lion that attacks the hapless zebra. The lion and the company are both doing what they have to do to survive. Don’t blame them. Blame our policymakers.
The company did cancel the proposed 120-mile, $3.3 billion “Northeast Energy Direct” line across northern Massachusetts, citing lower demand, and wrote off $100 million. Nevertheless, KM was determined to complete the relatively insignificant and also unnecessary “Connecticut Expansion,” if for no other reason than to put a stake in the heart of Article 97 of the Massachusetts constitution as a warning to other states. Assessment: Arrogant, relentless. Grade: N/A
Our Policymakers
Governors of the New England States. During Christmas week, 2013, six New England governors – four Democrats, including lame duck Deval Patrick, and one each Independent and Republican – met quietly in Hartford. They drafted a manifesto to encourage more transmission infrastructure in New England to boost supply, they said, and to reduce energy costs to homeowners and industry. Many of them professed to be supporters of alternative energy. Kinder Morgan effectively used the governors’ appeal to justify the Northeast line and the Connecticut Expansion. Assessment: Shameless hypocrites. Grade: F
The Federal Energy Regulatory Commission. FERC’s motto should be, “We have never met a pipeline we didn’t like.” At least that would be honest. Throughout the tortuous approval process, impacted individuals and stakeholders attended FERC’s public hearings. FERC encouraged submission of comments and concerns which worried citizens presented passionately. It was all for show. This commission has enormous power and is virtually immune from challenge. It was established to facilitate energy transmission, not to be fair. Sadly, the commission is married to the industry. That’s why the FERC staff lawyer told our neighbor in 2013, “We approve 99 percent of these projects.” Assessment: Desk jockeys on automatic pilot. Grade: F
The Judge. Last year, Superior Court Judge John Agostini refused to rule in favor of the Commonwealth’s petition to make an exception to the 1938 Natural Gas Act for Otis State Forest conservation lands under Article 97 protection. But for this, the case could have headed to the U.S. Supreme Court, creating a huge, possibly fatal delay. Instead, he kicked the can, expecting that a vote of the [Massachusetts] Legislature would shove the case up the appellate ladder. But the Statehouse did nothing, essentially giving the company a green light and a huge setback for opponents. Assessment: Feckless. Grade: D
State Representative Bradley. In August 2015, on behalf of Tennessee Gas Pipeline, state Rep. Garrett Bradley, (D-Hingham), on the eastern shore, inexplicably introduced a bill to transfer Otis State Forest lands out of Article 97 protection. Howls of protest arose across the state. In July 2016, the Boston Globe ran an exposé about Bradley and his law firm’s “audacious” scheme to skirt campaign finance laws to enrich themselves. Bradley immediately resigned from office, after 16 years. Assessment: Scoundrel. Grade: No grade low enough for this guy.
The Legislature. Faced with a Catch 22-type dilemma, leaders worried that the bill to waive Article 97 protection for Otis State Forest might pass and the company could simply proceed. But if the bill were voted down, the company would definitely file suit. If the state lost in high court, Article 97 would be mortally wounded. So the bill died in committee. But now the company had the upper hand and the Department of Environmental Protection, the Department of Conservation and Recreation, and the Attorney General were undermined. Sandisfield’s fate was sealed and Article 97 was effectively toothless. Assessment: Gambled and lost. Grade: D
In 2014-15, State Senator Ben Downing and especially Representative Smitty Pignatelli were vocal champions for the Town and opponents. Commendably, they rebuffed Kinder Morgan’s request for a bill. But by mid-2016 with the inevitable looming, Pignatelli advised the Town to hedge and negotiate for what it could get. This may have played into KM’s hands. It certainly depressed the morale of landowners and others. Sen. Downing has since retired and Rep. Pignatelli has moved on to other issues. Assessment: Should have stayed the course. Grade: B-
Governor Baker. He opined that it would have been better if the existing two pipelines had been made larger back when. That’s about it. Assessment: Disengaged. Grade: F.
State Agencies Supposed to Protect Us. The departments of Environmental Protection and Conservation and Recreation pretended to fight. Threatened with eminent domain, DCR capitulated last December. Their press release touted extra compensation from Kinder Morgan for the state. DCR ecologist Nancy Putnam earned a personal “A” for calling out serious deficiencies such as likely blasting in TGP’s initial application. Assessment: The people running these agencies really don’t care that much. Grade: D
The Attorney General challenged TGP in court and for a while it looked like the state could prevail. But once the judge passed the buck to the Legislature which did not act, the AG folded. Assistant AG Matthew Ireland was well prepared, vigorous, and convincing. No shame on him. Assessment: Was this case too politically risky for AG Maura Healy? Grade: D
Congressional Representatives. Question: Where were Sens. Markey and Warren and Representative Neal in 2014-16 when their party was in power and they had real influence? Answer: In hiding. In April, 2017 after FERC had issued the Notice to Proceed, the three demanded that the project be stopped, which of course everyone knew would not happen. Assessment: Disingenuous. Grade: F
The Town of Sandisfield. Between 2014 and mid-2015 the Select Board and the Town Administrator acted like deer in headlights. Voters in May 2014 gave officials cover with a non-binding resolution to oppose the pipeline unconditionally. Grass roots opponents were raising hell and making headlines. But other than a few platitudes about the pipeline being a bad thing for the Town, there was almost no engagement with FERC or State agencies. Opponents were told time and again that the Town had real standing and should be leading the charge. Eventually, the company dangled a possible payout in the hopes of a friendlier atmosphere. The chairman at the time took the bait, got burned. Assessment: Ineffective. Grade: D
The current administration has been more engaged but has also given mixed signals. Despite warnings, they too yearned for a windfall which was the same mistake. No Town property is impacted except road damage and a few road cuts. The landowners are the victims. The Town should be compensated for legal fees and road deterioration, to the penny, nothing more. Assessment & Grade: Incomplete.
Likewise, the Conservation Commission which could have had considerable say through the process was invisible for more than two years. Members either did not attend or speak at hearings about this colossal environmental issue. Commissioners did not even read the Mass EPA reports, thousands of pages of details, schedules, maps, impact statements and so forth. Only after a TGP-paid consultant was retained in 2016 did the ConCom get seriously involved. Assessment: Would rather deal with driveway cuts and septic systems. Grade: C+
Berkshire County Regional Planning Commission. Executive Director Nat Karns attended important public hearings. Well prepared, he was a strong voice at the podium and predicted consequences better than anyone else, all of which are coming to pass now – roads, traffic, and disruption. Assessment: Understood the threat, greatly appreciated. Grade: A
The Aggrieved
Constitutional Article 97. This 1972 landmark legislation guaranteed that conservation land would be afforded the highest possible permanent protection by the State. In the long run, a now enfeebled Article 97 could be the biggest casualty of all. Along with all the citizens of the Commonwealth.
The Tribes. A coalition of Native American tribes, actually “sovereign nations,” learned about the project in 2013. Their interest is protection of sacred ceremonial sites. TGP has confirmed that about 24 sites will be destroyed. The U.S. Historic Preservation Act affords the nations extraordinary review privileges called “Consultation.” Because of a snafu at FERC, the tribes could not become engaged until December 2016, after final environmental reports were published. Their lawsuit vs. FERC is pending even as the destruction/construction proceeds.
The Opponents. The only steady presence has been a collection of grass roots opponents including Sandisfield Taxpayers Opposing the Pipeline (STOP), Berkshire Environmental Action Team (BEAT), Massachusetts PipeLine Awareness Network, and No Fracked Gas in Mass. They continue to advocate. The Sugar Shack Alliance, a statewide environmental group, staged non-violent protests near Spectacle Pond resulting in 24 arrests. These committed groups continue to keep the issue in the public eye.
The Landowners. The FERC approval process gave landowners plenty of opportunity to comment. However, their observations and protestations carried little weight. The company seized property under threat of eminent domain. Meager one-time compensation to landowners was an offer that couldn’t be refused. This was especially bitter for families who have been on their land since before 1951, the advent of the first pipeline. Meanwhile, landowners must pay property taxes on the seized land, which is also badly devalued, while having limited access to it. Absurdly, landowners are responsible for security of the right-of-way. Numerous abutters are affected to different degrees but are excluded from the formal process. TGP enjoys perpetual rights but does not pay royalties. Fairness and concern for residents’ well-being is not part of this process.
I found this article very illuminating and informative on a subject that in the past I had a hard time sorting out, with its twists and turns and very large cast of characters. Not a proud outcome for any of them. Thank you Ron and I’m sorry for your (our) loss.
Thanks Diane. This is a kind of case study for those who may face a new pipeline in the forseeable future. The outcome and the process are very predictable and will be the same but at least people will understand how they will be ignored, underserved and betrayed. Pipelines are radio active issues for politicans, unfortunately. Wish I could be more optimistic.
Ron
“Think of it [Kinder Morgan] as a top-of-the-food chain predator, not unlike the lion that attacks the hapless zebra. The lion and the company are both doing what they have to do to survive. Don’t blame them.”
Except the lion’s actions are decidedly not endangering future generations by carrying fracked gas that has poisoned groundwater and emitted untold amounts of methane into the over-burdened atmosphere and increasing the Climate Crisis. The comparison is ludicrous.
I feel strongly that the judge’s decision was flawed and should have been challenged in the upper courts. This was the only way to stop this destructive project. The Con Comm, the individual legislatures, the water quality permit, the people, all were important angles but losing battles in the end with out the single most important angle, the breaching of the public trust and our constitutional right under Article 97. The so called “Gas Act” as amended under the Bush Administration is an illegal act in my opinion and is in violation of our constitutional rights for clean air water and quality of life etc…. let’s hope that this flawed decision by this one small time judge does not set precedent for any and all projects the federal government might want to impose on us. If there is one take away, one lesson I hope people learned is that we the people need to stand up and protect our rights under the constitution and don’t rely on the politicians to do it for us, because that will never happen. People brought Article 97 forward in 1970, not politicians. And people will always have to defend it, not politicians. Unless you force them to defend it of course, and if they do not then the ONLY alternative is the courts. There was nothing to lose and it would have gained a lot more interests state wide.