State did not abandoned protected state forests

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By Saturday, May 13 Viewpoints  10 Comments
Ben Hillman
State Rep. William 'Smitty' Pignatelli visited Otis State Forest earlier this year, to see first hand the old growth forest that was protected by Article 97 of the Massachusetts State Constitution.

I am writing in response to the piece by Mary Douglas in the May 6 Edge, entitled, “State looked the other way as chainsaws make way for pipeline in protected forest.”

I would first like to thank Mary Douglas for her historically excellent coverage of the Otis State Forest pipeline project. Her previous columns have been intelligent and informative.

However, I take issue with the assertion in her recent piece, dated May 6th, that the Legislature “took a pass” on standing up for Otis State Forest and, by extension, all state-owned preservation land. In other words, she says that we were in a position to halt the pipeline and we chose turned our back on the issue. This couldn’t be further from the truth, and the piece submitted by Mary to The Berkshire Edge seems to me to be an opinion piece, although it was not labeled as such.

Over the past several years, I have worked closely with the Attorney General, former Sen. Ben Downing, and other key stakeholders on how the State Legislature could best protect Otis State Forest and other state preservation land from natural gas pipeline construction. Although we were unable to stop this project, we have managed to protect the state’s ability to fight to protect future land from being seized for pipeline construction and we have been able to negotiate and establish a precedent for the enforcement of Massachusetts’s “no net loss” policy.

Let me bring you through an abbreviated sequence of events:

I was approached by Kinder Morgan over two years ago, asking me to file special legislation which would give them the right to build the pipeline through this state-owned preservation land. I politely but strongly asked them to leave my office. Former Senator Downing gave them a similar answer.

Because neither one of the legislators which represented that area of the state would file the legislation, Kinder Morgan found a powerful member of the Legislature who represents a distance over 120 miles away from Otis State Forest to file the bill on their behalf.

It was a very real concern that, if the bill had been brought to the floor for a vote, it could have passed, and we then would have lost all ability to stop the pipeline. Still, the bill never made it to the floor because the Committee on State Administration and Regulatory oversight sent the bill to study. In other words, they killed the bill. The fact that the bill did not even receive preliminary approval to move to the floor sends a clear message that the Massachusetts Legislature had no interest in handing over one of the state’s few remaining old growth forests and a spectacular natural resource to a profit-driven natural gas company.

Pignatelli in the old growth Otis State Forest. Photo: Ben Hillman

Pignatelli in the old growth Otis State Forest. Photo: Ben Hillman

Mary contends in her May 6th piece that, after Judge Agostini’s decision which allowed Kinder Morgan the power to proceed, the Legislature should have revived the bill and brought it to the floor to be voted down. Presumably, the case for the state’s right to prevent Kinder Morgan from constructing the pipeline in Otis State Forest could then have been further challenged.

However, the case for the state to protect Otis State Forest rests on a portion of the Massachusetts Constitution, Article 97, which is unique among state constitutions. Article 97 dictates that “the people shall have the right to clean air and water…and the natural, scenic, historic, and esthetic qualities of the environment” and that the Legislature, in the interest of protecting our natural resources, may acquire land for protection purposes. That land may then only be transferred for non-preservation purposes by a two-thirds vote by the Legislature, an intentionally very high threshold. The power of this Article to stand up against the federal government’s right to seize land for the purpose of ensuring that the country has access to a reliable power supply has never been challenged in federal court.

If the Otis State Forest case had gone to a higher court and lost, that would establish precedent for the entire state. Essentially, it would make us completely powerless to prevent future infringements on our as-of-now still constitutionally protected land. I cannot overstate the impact of setting that precedent, and there is a real possibility that, with the specific circumstances of Otis State Forest, which already contains two active, existing natural gas pipelines, there was a real possibility that we could have lost.

Therefore, after consulting with the Attorney General and others, we decided that the Legislature had made its position clear and we could best serve to protect the Commonwealth’s natural resources by negotiating for Kinder Morgan to honor Massachusetts’s “no net loss” policy. This non-statutory policy states that, when preservation land is transferred for non-preservation use, the state will be compensated to acquire similarly valuable state land. Although the trees being cut now by Tennessee Gas are fundamentally irreplaceable, and I wish that we could have done more, I fundamentally stand behind the choices that we have made over the past several years in relation to this issue.

I am disappointed in FERC’s decision, and I have said that we have been “FERC’d” on multiple occasions. While I appreciate that our federal delegation sent letters asking FERC to reconsider, I wish that they had done more to demand answers to the concerns of the town, the environmental advocates and all concerned citizens.

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10 Comments   Add Comment

  1. Patrick Fennell says:

    Not surprised my first statement got deleted, after all the Edge hats the First Amendment more than the Second right now. To be blunt, 85% of elected politicians in MA are democrats, 100% of our Congressional Delegation are democrats. In fact MA republicans minus the governor who is really a RINO get almost no money from lobbyists or special interest. So the protesters can than both Boston and Washington for the pipeline. Again follow the campaign donations and and lack of real effort to stop it. Politicians stopped working for the common citizens decades ago and in MA know with a D next to their names they will always get re-elected so have no worries about the pipeline of Housatonic clean-up and the future PCP dump in Housatonic. Basically the majority of protesters voted to build the pipeline and for the future PCP dump.

    For example Adam Hinds donor list has Mobile Exxon money and do you really think all of those $1,000.0 donations from out of state lawyers are to fix school transportation costs? Richie Neal’s list is always rather impressive.

    Read this quickly it will soon be deleted.

  2. John says:

    The project is a 36 INCH and a 24 INCH pipeline. It is not a 3 mile wide clear cutting…. folks seem to forget that the shower taken every day requires lots of energy. That electric Tesla you might own needs to get its juice from a power plant and that Kureg you own uses lots of power to keep that water continuously hot… it all takes energy folks and lots of it.
    Yes it is sad to see a very old tree get cut. However, trees do grow back. Just Look at all the old farms now. All grown up into Forrest again. Look at Jug End ski area… all trees…

    1. Jason Brown says:

      John, do you work for Kinder Morgan PR? I don’t own a Tesla and please don’t insult our intelligence by stating obvious facts like “trees grow back” which is wrong and highly insensitive in this case. These beautiful old growth trees cut down needlessly are gone for ever. You’re probably unaware of how important they are in an ecosystem like Otis State Forest. What grows back if they do will be different. The only one who benefits from this devastation is Texas oil Kinder Morgan who doesn’t even need the money. If you cut down KM I’m sure they would grow back too like an invasive weed. Why don’t we try that option? Now we’ll have crude oil streaming and leaking through one of the most beautiful areas on the planet and you think it’s great? I’m sorry if you are in denial of what destruction just happened in our neck of the woods. Perhaps you should actually visit it one day.

      1. John says:

        Thanks for the chuckle. Nope don’t work for Kinder, nor do I own any position with them.
        There is old saying. Face reality as it is, not as you want it to be. 24 inch and 36 inch pipes. And yes, trees will grow back beyond our lifetimes. The bigger danger to this Forrest Over the next couple hundred years is potential actions by North Korea or Russia.
        To your question. I grew up in the Berkshires when Elvis was quite popular. Spent decades climbing and camping around the mountains….and even remember when the original gas line was installed….it was not the end of mankind when that was installed. Now, North Korea on the other hand…

      2. Zoe B says:

        There is NO SUCH thing as an Old Growth Forest on a property that was a Working Farm 60 years ago. The land was cleared by hundreds of years of plowing and planting. The stone walls were built over that same time as the rocks lifted to the surface and the farmers moved them (hence the facts that also destroy the “Ceremonial Stone Landscape” scam). In fact, if the locals had bought from the local farmer, it would still be a cleared farm today.

  3. Dennis Irvine says:

    I do not understand what powers of protection we preserved by avoiding the higher court?

    Do you mean to say this is the protection we currently have:

    “negotiating for Kinder Morgan to honor Massachusetts’s “no net loss” policy. This non-statutory policy . . .”

    Negotiating a non-statutory policy with well-monied energy corporations?

    You suggest we took this route to avoid a precedent that would effect Article 97, but it does not seem that Article 97 has too many teeth if, when we need to use it, we can only negotiate “for Kinder Morgan to honor Massachusetts’s “no net loss” policy.” – for fear if it heads to higher court it will be struck down?

    If Article 97 must be shielded from higher court review, leaving us with negotiation of a non-statutory policy as our only powers of protection, how is the Article a viable tool to assure “the people shall have the right to clean air and water…and the natural, scenic, historic, and esthetic qualities of the environment” at all?

    As a long serving legislator you are well aware of these nuances about Article 97’s vulnerability yet when Kinder Morgan first approached you about this you “politely but strongly asked them to leave my office” as did Downing.

    You knew you would eventually have to negotiate with them or risk 97 seeing higher court review and yet you politely kicked them out of your office.

    I wonder if another tactic would be a better way to protect our trees?

  4. Mary Douglas says:

    Thank you to Representative Pignatelli for providing valuable context to the Otis State Forest conservation dilemma. Certainly, he cared a tremendous amount about Otis, as evidenced by his public statements and his actions in the legislature.

    I did not intend to write an analysis that laid blame at the feet of any particular person or entity, but was rather looking at the whole picture of judiciary, legislature, executive agencies, and environmental groups to give a sequence of events, with some speculation about why things unfolded the way they did and how there could have been a different result. It was an opinion piece and that could have been made clearer.

    I agree wholeheartedly that to appeal the federal preemption ruling would have been a huge mistake. Judge Agostini’s ruling was a strong and decisive one, and, in my opinion, it is virtually unassailable on the law of preemption.

    Judge Agostini might have never have reached the preemption argument at the outset if he had ruled that he had no jurisdiction on the grounds of ripeness. That is, because the water permit and ceremonial landscape matters, among other things, had not yet been resolved, the preemption argument would have to wait.

    But that didn’t happen. Rather, Judge Agostini ruled last May on preemption, and invited the legislature to take some, unspecified action by July 29, 2016.

    As Representative Pignatelli pointed out, the legislature’s silence left Article 97 protections in place. Could the legislature have done more?

    Perhaps it is unrealistic to think that lawmakers could have positively reaffirmed the importance of Article 97 by passing a resolution to that effect or by voting down the bill on easements. Representative Pignatelli made the point that it was a real concern that the bill transferring the easements might actually pass. If vote counting showed that a bill might actually have passed, then, yes, silence and the status quo of Article 97 protection was the best that could be done. It is sad that the same legislature that enacted Article 97 in 1972 has changed so much that it cannot now affirm it.

    Nonetheless, there were arguments that could have been made legally and politically on need and alternative routes regardless of whether the legislature affirmatively supported Article 97.

    The National Environmental Protection Act (NEPA) requires analysis of alternatives to the project, including “no action,” which is certainly a viable alternative when there is no need. NEPA alternatives (although not well developed) were in the briefs before Judge Agostini, and could presumably have been raised on appeal, avoiding the third-rail of preemption.

    Alternative routes (assuming a need for the project) were also raised in the Superior Court briefing and those arguments could have been developed on appeal, particularly when NED collapsed and the route south that it had scoped might have been available for the Connecticut Expansion.

    And if not raised on appeal, the need and alternative routes arguments could have been raised as a political/policy matter with Connecticut.
    Massachusetts officials may have been able to secure Connecticut’s agreement that whatever need existed in 2014 no longer exists now.

    The timing would have been appropriate because Connecticut has been in the process of revising its Comprehensive Energy Strategy.

    The arguments might not have prevailed, but they appear never to have been made at all by any state or federal officials.

    1. Rachel I Branch says:

      Thank You, Mary Douglas!

    2. Dennis Irvine says:

      Thank you Mary Douglas, your letter was very helpful and informative.

  5. Dennis Sears says:

    Well done, Smitty! Unfortunately, “ferking” the citizens is going to continue for awhile.

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