Kinder Morgan pipeline project scorns state constitution, could set precedent
Sandisfield — Deep in the woods in this town of 800 people near the Connecticut border, an energy giant has already made a chess move that might wipe out a large swath of state-protected forest so it can add a 3.8 mile natural gas storage extension loop to a preexisting pipeline route for use in Kinder Morgan’s larger Northeast Extension Direct (NED) project.
Two pipelines already exist on this path — one was built in 1951, the other in 1980. The problem with this one is that it will require an easement to cut through forest next to the existing route. And not just any forest, but some of Otis State Forest’s 900 acres, protected by the state’s constitution through Article 97, which legislates the powerful notion that citizens have the right to “a clean environment,” and gives the state the ability to buy land to protect it. The state bought these acres for $5.5 million about 10 years ago, the largest land sale in state history, according to Rep. William “Smitty” Pignatelli (D-Lenox).
Pignatelli and I drive out to Sandisfield to see some of the forest that Kinder Morgan subsidiary Tennessee Gas Pipeline Company wants to annihilate with their Connecticut Expansion Project. He tells me the eminent domain strategy to seize easements here is “worrisome.”
“If this test of Article 97 fails, people will be questioning the validity of Article 97 forever more,” he said.
Attorney General Maura Healey appears ready to take it on, and through spokeswoman Chloe Gotsis told The Edge on Monday that her office “will be defending the state” and its constitution. A hearing is scheduled in Berkshire Superior Court on March 31 at 2 p.m.
As he navigates the sometimes treacherous country roads on our way to Sandisfield Town Hall, Pignatelli says “this is where the fight is” in the larger pipeline issue. Kinder Morgan’s argument, he said, is that there are already two pipelines in the ground here, and this would simply add a third.
“The difference between then and now is that the land was privately owned when those pipes were put in. Now it’s Article 97. This is a huge precedent-setting issue.” He reminds me that Massachusetts has “the oldest consecutively run constitution in the world,” and says the Legislature “thought enough of open space and protected land that they put it in the constitution.”
Tennessee Gas Pipeline LLC, the Kinder Morgan subsidiary, went to Berkshire Superior Court earlier this month to claim eminent domain when the state said it wouldn’t grant the easements for this third pipeline, a 36-incher that will not only require chopping down pristine forest very near old growth hemlocks, but will tread hard all over the town’s weak roads for nearly a year, and may cause water quality issues, among other problems. Tennessee Gas wanted to begin clearing the land in March, said Board of Selectman Chair Alice Boyd, who with the board’s assistant is running the town until July, when they can hire a new town administrator.
STOP, or Sandisfield Taxpayers Opposing the Pipeline, shot back in court with a motion to stop the Federal Energy Regulatory Commission’s (FERC) approval of the project. And yesterday (March 21) STOP said it was bringing a citizen suit against the FERC in federal district court for Clean Water Act violations since the expansion project “will cross or potentially discharge into, various rivers and streams within the state of Massachusetts.”
In her office at Town Hall, Boyd explains that this town with 90 miles of rough road, an aging population on fixed incomes, and little in the way of tax base, has already racked up more than $40,000 in legal bills negotiating an agreement “for community benefits” with Kinder Morgan’s lawyers. The company has agreed to pay that bill, but they haven’t yet, and it’s not easy for a cash-strapped town where roughly 60 percent of its land is either state-owned or on reduced taxes. Boyd says the town is tapped out on the legal front, and that town’s annual $3 million budget is just barely enough for critical services like schools.
“We’re in a pickle no matter how you look at it,” Boyd adds, noting how important it is to bring high-speed Internet here. But that’s a whole other story.
All that legal expense, should the pipeline be built, is to protect the land, the roads, and the residents from a corporate invasion that will take what it wants unless the lawyers hammer out a bullet proof agreement.
“They’ve already red-lined it,” Boyd says when I ask her where the agreement stands. KM attorneys have already crossed out things the town says it wants the company to do. One of them is to fix the roads, which will take a beating from tractor trailers that will convey the long sections of pipe, and will have difficulty even turning around. These roads are in bad shape as it is, she says, and were made for “light traffic.” The state never gives rural towns enough for infrastructure, and culverts can’t handle that weight, she adds, noting that culverts “are very expensive,” and rebuilding them requires jumping through many regulatory hoops.
Pignatelli says Boyd, a municipal grant writer and administrator, has been a “rock star in this whole discussion.”
He adds that while it is “common practice” for towns to have legal negotiations with developers, “most little towns don’t have $40,000 lying around to negotiate with a Fortune 500 company that has more lawyers than the state of Massachusetts.” He said the town and Kinder Morgan have an unsigned agreement that the company will pay around $1 million in these mitigation costs.
The town voted unanimously against the pipeline, Boyd tells me. And there is town-wide worry over potential hazards like “waterfall fires” that can move quickly through the pipes and require more manpower than Sandisfield’s all-volunteer fire department and its one half-time police chief can provide.
“We’re not prepared for an incident,” Boyd says.
Pignatelli calls this “the forgotten pipeline,” with all the media and political attention drawn to the larger NED that will run from west to east across the state, and the environmental organizations saving up their few pennies for that fight. But Pignatelli warns that Sandisfield may be the test: “Whatever happens here will affect everything, and there are zero benefits to Massachusetts.”
“I love it here,” Boyd says as she drives us up winding roads through the recently snow dusted forest, to meet up with STOP member Jean Atwater-Williams and arborist Tom Ingersoll at the remote Spectacle Pond before hiking in to the pipeline route. Atwater-Williams tells us that TGP will take 1 million gallons of water from the pond to hydrostatically test the pipes once after they are installed. She is further concerned about the potential for “mishandling runoff.”
“There is a certain magic in here,” Boyd says as we walk past a sparkling stream. She says it would have “been a game changer” for the town to have accepted a developer’s higher offer on the land back when it was for sale. “In the end the town chose to forgo the money and protect the land — a huge statement for a little town like this that can’t afford to do much of anything.”
We are standing in the clearing where the two original pipelines run through the earth beneath us. On one side is the forest that will need to be cleared another 60 to 100 feet in to more than double this corridor for a third. We step into what Ingersoll describes as a “healthy competitive ecosystem,” where all the growth is at the top of close-together trees, mostly hemlocks that can drive out other plants with its own toxin. But hemlocks are threatened, mainly by two “piercing, sucking” insects that drive into the tree’s “vascular system through the twigs and needles,” Ingersoll says. He picks up a small fallen bough and shows us evidence of these insects.
“They can kill a hemlock in 4 or 5 years,” he said.
He breaks off a black birch twig for me to chew as we go in search of the old growth in this watershed that he says is a “rare commodity” in an “unfragmented ecosystem,” where the lack of human interference allows diversity of bird, mammal and insect species. I am warned by Atwater-Williams to not identify the location of what she said is a stand of 400- to 500-year-old hemlocks, should we find them. We never do find them, but we do come upon one that Ingersoll estimates at between 250 to 350 years old. And while the cutting may not touch these very old trees, it will come close by invading part of the ecosystem.
The Department of Conservation and Recreation (DCR), Pignatelli says, “signed off on the pipeline,” because “they didn’t see any great environmental risk.” And Atwater-Williams says that if Kinder Morgan is allowed to pull the eminent domain card, no one would want to donate or sell land to the state for conservation. “Article 97 would have no teeth.”
“We will soon see,” Pignatelli says. “I think eminent domain is a very dirty word. A dangerous slippery slope.”
And as we stand on the rich understory of this enchanting forest, Pignatelli speaks – with undisguised disgust — of FERC, the agency that gives approval for all pipelines. “They have total disregard for this community of 800 people and our process,” he said.
He said he wished the Washington delegation would do more “than just issue statements,” and he wants them to get on the phone with FERC. He also says people should start calling their federal delegation, Senators Elizabeth Warren, Richard Neal, and Edward Markey.
“Our citizenry needs to rattle their cages,” Pignatelli said.
He further said FERC “jumped ahead” in its approval, essentially deadening the incentive for Kinder Morgan and Tennessee Gas to “honor the process” and use best practices such as cutting during the dry season and obeying a host of other environmental rules and regulations. The Endangered Species Act prohibits cutting between October 31 and March 31, and Kinder Morgan got a May 1 extension to cut because of the legal tie up.
“The whole thing is flawed,” Pignatelli added. “Let’s do it right or not do it at all.”
Atwater-Williams says Article 97, drafted in 1977, is a “moving…broad philosophical statement” about what nature means to the state. She said it lined up with the spirit of Sandisfield taxpayers, as well, who made a “sacrifice” in turning away “tax revenue to preserve this.”
Ingersoll stops at the old hemlock on our way back and puts his hands on it. “It’s Tsuga canadensis,” he says. “A Canadian hemlock.”
Ingersoll says he believes that any “clearing and/or disturbance could potentially invite invasive species unless given proper aftercare.” While cutting here “may not directly impact the old-growth forest,” he says, “the work is proposed within an area that comprises a plant community and ecosystem, the overall sensitivity of which is significant and should be considered as a whole.
“This is a case of a forest of clean air machines being literally traded for the transmission of fossil fuels,” Ingersoll says. “Not a step in the right direction.”
There are over 100 conditions that Tennessee Gas needs to meet to obtain its permit from the Sandisfield Conservation Commission.
Boyd mentions a fourth pipeline. “A fourth?” I say. “There are already documented conversations between FERC and Kinder Morgan for a fourth either here or near the Mass Pike,” she tells me.
On our way back to town hall Boyd jokes a bit about the lack of cellular service in Sandisfield. She says she has to be “right on top of a booster” to get it.
“People live by their wits in communities like this,” she says. “We’re very grateful for the support from Smitty, [Sen.] Ben Downing, and [Rep.] Peter Kocot. Smitty sees we can get rolled over very quickly.”
Boyd parks at town hall, and just before we get out, Pignatelli, who is not known for mincing words, doesn’t do it this time, either.
“The town is being bulldozed by a big corporation,” he tells me.