FERC deals a blow to pipeline opponents, but some options remain

Washington — The Federal Energy Regulatory Commission (FERC) has issued a Notice to Proceed allowing Tennessee Natural Gas Pipeline Company to begin tree clearing and construction activities for its Connecticut Expansion pipeline project through Otis State Forest.

Bitterly opposed by conservation groups and many others in and beyond Berkshire County, the project aims to add a 3.8-mile loop to an existing pipeline in the county in order to transport natural gas to Connecticut gas utility companies. The construction will damage the stands of old-growth hemlocks in Otis State Forest, which is protected under Article 97 of the Commonwealth’s constitution.

The 3.8-mile route of the Connecticut extension (in orange) through Otis State Forest.

Recently, the United States Court of Appeals for the First Circuit ruled that Tennessee could not challenge the merits of the water quality certification for the project until the Massachusetts Department of Environmental Protection (MassDEP) had finalized it.

MassDEP issued the final certification on March 27, shortly after the First Circuit decision. FERC followed with its Notice to Proceed on April 12.

Nine months after the original certification was issued, after an administrative hearing, and after reevaluation of the original certification by MassDEP, the final certification was virtually identical to the certification that was first issued June 29, 2016.

The litigants who successfully challenged Tennessee in the First Circuit on jurisdictional grounds may now challenge the substance of the Massachusetts water quality certification in the same court.

Berkshire Environmental Action Team (BEAT) and the other litigants are considering their options and have until April 26 to file an appeal on the merits in the First Circuit.

If there is an appeal, MassDEP has attempted to allow work to proceed during the time that the appeal is proceeding by making one – and only one – wording change in the final permit.

Catherine Skiba, Service Center Manager for MassDEP’s Springfield office, pointed out that the final certification allows pipeline work, including tree cutting, to start after a final decision [on certification] by the Department.

The Federal Energy Regulatory Commission headquarters in Washington, D.C. Photo: Ben Hillman

Language allowing work to proceed only after “any appeal proceedings that may result from an [administrative] appeal” was eliminated in the final permit. Tennessee would likely point out this language to the First Circuit if the litigants attempted to enjoin work, although this language might not determine the ultimate outcome in the First Circuit.

Whether or not Tennessee actually proceeds now depends on the stamina and will of the project’s many opponents. There are several legal vulnerabilities in addition to a possible water certification challenge that could catalyze opponents.

Tennessee must still comply with the terms and conditions of the water quality certification before beginning construction.

Kathryn Eiseman, Director of the Massachusetts Pipeline Awareness Network, cites condition 34 as an example of a condition that may take some time for Tennessee to comply with.

“[It] requires transfer of a portion of the “Fales” parcel, slated for wetlands replication as mitigation, prior to the initiation of any activity. This has not yet occurred; the parcel hasn’t even been subdivided,” says Ms. Eiseman.

But will it really take that long to comply with the conditions in the water certification? Jane Winn, Executive Director of the Berkshire Environmental Action Team, thinks that it will take “less than a month” for Tennessee to pull together the remaining activities that are required by MassDEP, after which work is likely to begin.

And will MassDEP enforce the certification’s conditions if violations occur?

Catherine Skiba of MassDEP emailed, “You also asked if MassDEP would enforce the conditions of the WQC [certification] even if it caused a delay in the project. Once a Final WQC is issued by MassDEP, it [is] an enforceable document.”

Meanwhile, the Narragansett Tribal Nation has retained counsel and, on April 12, filed a brief opposing Tennessee’s request to proceed.

According to the brief, FERC failed to ensure the timely study of ceremonial stone landscapes. The agency issued the Certificate approving the pipeline route prematurely, without taking into account its obligation to consider alternate routes that would have avoided, minimized or mitigated the pipeline’s adverse effects on the sacred stone landscapes.

The Tribe argues that this failure, together with the agency’s failure to insure consultation with the Tribe to mitigate the destruction of the stone landscapes, violate the National Historic Preservation Act.

Disputing the fundamental validity of the Notice to Proceed, the Tribe also points out that a FERC staff member, rather than a Commissioner, signed the Notice.

When Norman Bay resigned as FERC Commissioner in February, only two commissioners remained, leaving FERC without a quorum. Although FERC tried to deal with its inability to function by issuing an order delegating authority to staff, the validity of such delegation is legally questionable.

However, despite the Narragansett Tribe’s filing, FERC has not granted it status as an intervener, meaning that its arguments may meet a deaf ear.

Another aggrieved group could yet make a move against the Notice to Proceed. Sandisfield Taxpayers Opposing the Pipeline (STOP) are, in Ms. Eiseman’s words, “livid that they never received a response from FERC to their motion for a rehearing,” which was filed about a year ago.

Rather than respond to the motion, FERC issued a so-called “tolling order,” which postpones an agency decision on a particular filing, temporarily halting the legal challenge.

In most cases in which FERC issues tolling orders, the original opposition becomes moot because, by the time FERC lifts the tolling order, the pipeline has been constructed.

Lower Spectacle Pond, the site of pipeline protests last summer. Photo: Ben Hillman

The Sandisfield Conservation Commission appears to have conceded that work stoppage may not be possible, but that, at any rate, the work can be done right. The Commission has hired wetlands consultant Emily Stockman of Stockman Associates LLC to monitor the work and hold Tennessee accountable for complying with the relevant standards and regulations.

Jane Winn of BEAT fears that whatever legal steps are taken next may not prevent Tennessee from initiating construction.

Expressing her “total outrage,” Ms. Winn said, “I don’t even know what outrages me more: the illegal notice to proceed which was signed by some low-level functionary; FERC’s not even having looked for ceremonial stone landscapes before issuing the Certificate; or FERC issuing a tolling order [to STOP] that puts off a decision until after the pipeline is built.”

Is there a significant need for natural gas in Connecticut to cause Tennessee to proceed despite the fervent opposition? The answer appears to be “not anymore.” There was a perceived need in 2014 when the pipeline was first considered, but the need is questionable now.

In 2013, Connecticut presented its Comprehensive Energy Strategy (CES) for the future. The centerpiece of it was the state’s embrace of natural gas for home heating.

However, while natural gas appeared to be economically attractive in 2014 when oil was $115 per barrel, its attraction faded when the price of oil plummeted to under $35 per barrel in the next two years.

The price gap between oil and gas has narrowed to such an extent that there is little incentive for Connecticut homeowners to convert to natural gas.

In a June 2016 letter to the Department of Energy and Environment from Connecticut Natural Gas and Southern Connecticut Natural Gas, the companies said, “…forecasts of new customers for calendar year 2016 have been reduced 47.8 percent from the goals set forth in the [CES] plan.”

A December 2016 article in the Connecticut Mirror concluded that the 2013 CES missed the mark, and that “conversions to gas for heat are far below their original targets.”

Connecticut state officials are now updating the CES. A draft will be released in April. Could the need for infrastructure for gas be reconsidered in light of the state’s sharply reduced need for the gas? Perhaps Massachusetts’ opponents and political heavyweights should be talking to Connecticut energy officials.

BEAT plans to encourage opponents of the pipeline to draft letters to Senators Elizabeth Warren and Edward Markey, Congressman Richard Neal and others. The FERC Notice to Proceed has dealt a blow to the opposition, but it is not giving up.