Sandisfield — Kinder Morgan subsidiary Tennessee Gas Company went back to Berkshire Superior Court last week to fight a waiting period before it can begin cutting trees on a state-owned and protected slice of Otis State Forest, where it plans to build a pipeline storage loop known as the Connecticut Expansion Project. (For an account of searching for the forest’s 400-year-old hemlocks, please see accompanying story.)
Tennessee Gas filed an appeal to overturn a July 29 stay imposed by Judge John A. Agostini in a May 9 ruling that said while the U.S. Natural Gas Act of 1938 grants the company the right to the land, the company must wait until the end of the Legislative session, since providing an easement on state protected land requires a two-thirds vote of the Legislature, according to the Article 97 of the state constitution.
The Legislature’s vote may not be able to stop a project that has the federal government’s blessing. It may only be a vote “for the record,” according to Rep. William “Smitty” Pignatelli (D-Lenox).
According to a statement from Kinder Morgan spokesperson Richard Wheatley, the company is “pleased” with Judge John A. Agostini’s ruling that federal law trumps state law in granting access to the land by eminent domain, and is only appealing Agostini’s July 29 stay.
Attorney General Maura Healey’s office filed an objection to the appeal, saying Agostini imposed the 10-week stay based on “factual findings that Tennessee would not be harmed by a short delay in taking possession of the easement, facts which Tennessee does not specifically refute.” The objection filing further says Tennessee’s waiting “more than four weeks” to file the appeal is “seriously undermining its claim of harm from a short delay.”
At the same time, the Fortune 500 corporation is also showing signs it will renege on a previous $1,080,000 million in compensation promises to the town of Sandisfield, according to Pignatelli and Sandisfield Town Manager Alice Boyd. An agreement between the company and the town, written but still unsigned, would have helped mitigate damage to a small town’s infrastructure as a result of a heavy pipeline construction operation.
A compensation hearing in Berkshire Superior Court is scheduled for early July, Pignatelli said.
Pignatelli also said there appears to be some outfoxing in play. Kinder Morgan’s decision last month to abandon its larger Northeast Direct Pipeline (NED) may have “diminished the outcry to kill this [Sandisfield] project,” and says he doesn’t entirely believe that the company won’t come back and try to build the NED.
Tennessee Gas went to court earlier this year to gain immediate access, saying their construction timeline required it. But the Attorney General’s Office fought back to protect state land, saying every alternative should be exhausted before the company can start clearing a forest where a stand of old growth trees live nearby, and that the Legislature should be allowed to weigh in.
And Healey’s office may not have played its entire hand yet. “We are continuing to evaluate all of our legal options going forward, including appeal of the underlying decision once it becomes final,” wrote Attorney General’s Office spokesperson Chloe Gotsis, in an email to the Edge.
But with the arrival of summer and a countdown of about 6 weeks, Kinder Morgan is fighting its way onto the land. And with federal laws in play, stopping this pipeline will not be easy. Pignatelli said his attention is now directed towards protecting Sandisfield.
“The federal government can clearly do whatever the hell it wants, unfortunately,” he said. “It has shown total disregard for this community and the wishes of the town.”
In desperation he’s fixing his gaze on the state’s federal delegation. He said Sen. Elizabeth Warren and Rep. Richard Neal could keep the heat on Kinder Morgan, to “keep them on the hook and at the table.”
Warren and Neal have not yet responded to the Edge’s questions, but spokespersons for both said responses are forthcoming.
“I want more from our elected officials at a federal level,” Pignatelli said. “Pick up the phone, call FERC [Federal Energy Regulatory Commission]. I can’t get a call back as a state rep. Alice Boyd as selectman can’t either.”
He forwarded Sandisfield’s agreement with Kinder Morgan to the Attorney General’s Office, along with all the legal bills incurred by the town as it hashed out the agreement with the company. “I hope [Healey] appeals it and uses whatever muscle she has to get Kinder Morgan to honor whatever commitments it’s made to the town.”
Boyd said Kinder Morgan has shown “a total lack of respect for the town” in “negotiating a contract that they weren’t willing to sign. They promised to pay our legal bills, and we’ve had no response.”
She said she sees the company’s behavior as an end run. “You send them something and you don’t hear anything, and if there’s something they need you hear from them right away. I’ve heard not a word.”
She said the town and volunteers have spent “months of our time and energy” to prepare the $1,080,000 Community Benefits Agreement. “I have absolutely no trust or faith in this corporation. They’ve shown us that they’re just out to use us.
“The town has bent over backward to treat them fairly,” Boyd added. “There are a lot of conditions because this is going through pristine land and water. All we ask in return to be treated fairly.”
Pignatelli said Kinder Morgan backed out the day before the agreement was about to be presented to Town Meeting for approval.
“I hope it wasn’t just to string us along,” he said.
Regardless of whether Healey decides to appeal the entire ruling, or loses any appeal, Pignatelli says he is going to bat for Sandisfield. “I’m afraid we’re gonna lose,” he said. “I want to hold the town harmless and protect them…I want them compensated.”
He did not think, however, that private property owners would have trouble getting compensation from the company.
Pignatelli also said the company, under Article 97 law, has to compensate the state for the Otis State Forest land for a pittance of $300,000. He says this is a travesty.
“I don’t want to be throwing any governor under the bus, but this was signed off under [former Gov.] Deval Patrick with no appraisal. How did you come up with that arbitrary number? I think it’s ridiculous for land the state bought for $5.2 million.
“You’re gonna let a pipeline go through for $300,000?”
“It is disheartening to see a corporation that wants come through our beautiful land treat us so poorly,” Boyd said.
Sen. Benjamin Downing (D-Pittsfield) could not be reached for comment on this story.