State looked the other way as chainsaws make way for pipeline in protected forest

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By Saturday, May 6 News  13 Comments
Will Elwell
Trucks conveying construction equipment for Tennessee Gas Pipeline's Connecticut Expansion arrive in Otis State Forest in Sandisfield, Massachusetts, last weekend, as protesters gather.

Sandisfield — In the end, no one who could have put a stop to it stepped up to the plate to defend the constitutionally protected, jewel of a pristine pond nestled in an old-growth forest. The state Legislature, the Attorney General’s office, the Department of Environmental Protection and, predictably, the Federal Energy Regulatory Commission stood by idly while the chainsaws were powered up and trees began to fall in Otis State Forest.

The tug-of-war over a beautiful parcel of land in Berkshire County appears to have ended. Everyone who could have made a difference – except for a handful of passionate environmental groups — shrugged and walked away.

Kinder Morgan subsidiary, Tennessee Gas Pipeline Company is now in possession of a Notice to Proceed from the Federal Energy Regulatory Commission issued in early April. The company’s workers are on site in the Otis State Forest, and have begun tree-cutting and construction activities.

Route of Tennessee Gas Pipeline's Connecticut Expansion (in red).

Route of Tennessee Gas Pipeline’s Connecticut Expansion (in red).

Gas contracts in hand from three Connecticut utilities, Tennessee has sought for several years to build its “Connecticut Expansion” pipeline, consisting of a 14 -mile pipeline through New York, Massachusetts and Connecticut, roughly 4 miles of which run through the Otis State Forest.

In a clash between a federal energy development law of the 1930’s and a state land conservation law from the 1970’s, the older federal law won.

Local Sandisfield residents, environmental groups in and beyond Berkshire County, and, to some extent, the Massachusetts Attorney General, all fought the pipeline, arguing that FERC and Tennessee had failed to comply with legal requirements. Indeed, on Friday (April 28) Massachusetts State Police arrested 18 members of the Sugar Shack Alliance who had blocked access to the forest.

But the Natural Gas Act of 1938, which gives draconian powers of eminent domain and state preemption to pipeline developers, took precedence.

Massachusetts State Troopers arresting a member of the Sugar Shack Alliance. Photo: Will Elwell

Massachusetts State Troopers arresting a member of the Sugar Shack Alliance. Photo: Will Elwell

The Otis State Forest has been protected under Article 97 of the State Constitution, enacted in 1972. The Massachusetts Audubon Society played a crucial role in securing the protected status, which, under the terms of the Article, could be removed only by two-thirds vote of both the Massachusetts House and the Senate.

Except that, in this case, that vote never occurred.

Last spring, after Tennessee received the green light from FERC, Tennessee tried to obtain the easements through the Forest from the Massachusetts Department of Conservation and Recreation. The agency refused.

The State Legislature also refused, failing to bring a bill to a vote that would have transferred the easements.

Stonewalled by the Legislative and Executive branches of the Commonwealth, Tennessee then turned to the Judiciary. Last May, it obtained an interpretation of the Natural Gas Act that allowed it to obtain the easements by eminent domain authority under the Act.

Judge John Agostini invoked the Supremacy Clause of Article VI of the U. S. Constitution, which requires preemption of state laws that conflict with federal laws.

If individual states could assert constitutional provisions intended to protect their environments, he wrote, they could easily stop federal interstate projects like highways, telecommunications networks, and transmission lines.

However, Judge Agostini appeared to expect further state legislative action and an appeal by the Attorney General. He set July 29 date for his order to go into effect, writing:

“By giving the legislature until July 29 to conduct a hearing and issue any directions or recommendations regarding the project, this factual dispute [about whether Tennessee must make a good faith effort to comply with article 97]…will be moot or simply be reduced to a legal argument for the appellate courts.”

Lower Spectacle Pond in Otis State Forest that will be drained to flush out gas pipes.

Lower Spectacle Pond in Otis State Forest that will be drained to flush out gas pipes.

The Legislature, however, did nothing by the deadline.

Nor did the Attorney General’s office appeal, leaving Tennessee Natural Gas Pipeline vs. Commonwealth of Massachusetts as precedent for other infrastructure projects that seek to locate in Article 97-protected land.

State officials may have taken a pass, but the ruling did not stop determined environmental groups and Sandisfield citizens. The Massachusetts Pipeline Awareness Network (MassPLAN), the Berkshire Environmental Action Team (BEAT), the Sandisfield Taxpayers Opposed to the Pipeline (STOP) and many others have taken aim at incomplete compliance by Tennessee – and shoddy state and federal oversight – with the Clean Water Act, the National Trust for Historical Preservation Act, and the National Environmental Protection Act.

On April 24, MassPLAN and others filed a request for a rehearing on FERC’s Notice to Proceed, claiming that FERC staff exceeded their authority in issuing the Notice to Proceed for a project “in which contested matters remain unresolved and the Commission lacked a quorum to resolve them.”

Currently, there are two Commissioners. Three positions must now be filled. Four spots will be vacant in June, when another retires.

Headquarters of the Federal Energy Regulatory Commission(FERC) in Washington, D.C. Photo: Ben Hillman

Headquarters of the Federal Energy Regulatory Commission(FERC) in Washington, D.C. Photo: Ben Hillman

The filing also blasted FERC’s failure to consult with the Narragansett Indian Tribe and the Nolumbeka Project after a survey of ceremonial stone landscapes showed that the pipeline route would destroy many of them.

Behind the arcane legal and statutory issues lies an issue that everyone readily understands: Is the gas still really needed by the Connecticut utilities that had contracted for it several years ago?

FERC is required to reexamine the need for a particular project if data shows that anticipated need has not materialized. Yet, neither FERC, nor any Massachusetts’ state officials, appear to have examined the question of project need.

In April 2016, the Sandisfield Taxpayers Opposed to the Pipeline called the lack of need to FERC’s attention in a filing for a rehearing that challenged the Certificate Order.

FERC never responded.

MassPLAN underscored the lack of need in its April 24 filing, stating, “New data concerning the period after the Certificate Order was issued confirms that the actual need for new capacity, based on oil-to-gas conversions, is significantly lower than was projected when the precedent agreements were approved.”

Connecticut’s Comprehensive Energy Strategy of 2013 featured a major effort to have homeowners and businesses convert their heating from oil to natural gas. In 2013, however, the state could not have anticipated the dizzying drop in oil prices from a peak of $115 per barrel in June 2014 to under $35 per barrel at the end of February 2016, with only modest rebound since then. Of course, it became a struggle for the state to achieve oil to gas conversions when the price differential between oil and gas had closed dramatically.

pipeline marker

A marker for an existing corridor in Otis State Forest that is to be enlarged for an additional line. This corridor was established before the old-growth forest on either side was declared to be protected under the Massachusetts State Constitution. Photo: Ben Hillman

Connecticut is now working on an updated Comprehensive Energy Strategy. World Bank oil forecasts project oil prices rising very gradually, but staying relatively low, for the next fifteen years.

So where were the Massachusetts officials who could have negotiated with Connecticut to save Otis State Forest because the gas wasn’t really needed after all?

The Berkshire Superior Court decision affirming the scope and power of the Natural Gas Act seemed to take the wind out of the sails of even the most ardently anti-pipeline state and local officials. No one stepped forward to argue that there was lack of need.

That FERC has ignored the lack of need is not surprising given its track record of virtually never having disapproved a pipeline applicant.

But what happened to the State? Following a lengthy challenge to the section 401 Clean Water Act permit, the Department of Environmental Protection made only one change. It modified language that would have stopped work on the site from beginning until completion of all appeal processes. The language change gave the green light to Kinder Morgan to begin immediately.

The environmental group that has spearheaded much of the resistance to the pipeline believes that the Baker Administration’s anti-regulatory climate has had a serious negative impact on environmental protection. MassPLAN’s Executive Director, Katy Eiseman, points out, “Governor Baker’s budgeting priorities and Executive Order 562 – requiring elimination of ‘burdensome’ regulations – provides a context that makes it not at all surprising that the state has failed to defend the Commonwealth’s constitutional protections of conservation land…”

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13 Comments   Add Comment

  1. Dana Coleman says:

    This is so discouraging.

  2. Steve Farina says:

    This project is moving on. So now what? It would seem a good course of action would be to create a federal law which recognizes the right of its Sovereign States to set aside land which cannot be disrupted. Such law could then, theoretically, supercede others and protect these valuable natural resources.

  3. Patrick Fennell says:

    If you look in your elected pols campaign coffers you will see why the project is moving forward. Ironically most of the protesters voted for them. As the saying goes, “You get what you pay for.”

  4. Karen Shreefter says:

    Thank Sugar Shack Alliance for trying.
    The photo is so Jarring with so many troopers and one diminutive in height but tall in dignity being arrested. Aren’t there real crimes to solve?

    1. james brewer says:

      oh well, massachussetts is only 100% more forested today than 100 years ago but god forbid some soft maple trees get displaced for 5-7 years.. so they can bury a pipe that supplies millions with heat and power..

      1. Diane Provenz says:

        There is NO need for this pipeline in CT. It was never meant for MA citizens. This is an ancient forest – 100+ years old taken by eminent domain without considering effects on water –
        Protected species

    2. John says:

      How much money did these protestors spend of the taxpayer money? All these police, the police cars, the processing them into the system, now tomorrow starting to tie up the court system? Free speech is wonderful in this country, but intentionally getting arrested is not wise.
      Contrary to emotional belief, the Forrest is not being leveled…go take an airplane ride for 50 miles in any direction. You will find expansive Forrest and very little human domination in any direction. Pittsfield is an exception as is Hartford/Springfield.
      If you really want to reduce energy consumption, manage the population growth.

    3. Eudora Perry says:

      Disgusting. Those troopers are on the wrong side of history. The conscious ones persevere.

  5. Betsy Cook says:

    I feel my comments to the AG, the Governor and my own State Senator Humason ( I live in Chicopee but my mother used to live in Sandisfield) have been to no avail. I do appreciate the coverage that mostly has been over in the Berkshires. But I do believe a large number of concerned citizens could be rallied to not only disgrace and take to task our Governor and our legislature for not going to bat for protected lands and private that lands that don’t need to be taken when there is no serious need, but to change laws and hold them all accountable on future environmental issues which no doubt are looming. There are several reports on how Massachusetts is lagging now. We must demand change! The ignoring of the Ceremonial Stones is excusable as well! Thank you those who are protesting by standing with the trees!

  6. Rebecca McCrary says:

    Mother Earth is crying out but no one wants to help and protesters can only do so much. We have no voice and this is so not right! Pipelines are destroying our precious waters while the big shots in high places
    are stuffing their pockets with money!!

    1. Patrick Fennell says:

      Actually if the protesters did their homework better they would see that most pols in MA and 85% are democrat take pipeline money through special interests, lobbyists, out of state lawyers etc. Both Downing and Hinds have taken thousands and were always voted in office. Think about that. Richie Neal for example has taken in millions over his forty years of taking up space in Washington and always gets well over 60%. You get what you vote for. Sadly Chris Canning made a pledge to fight the pipeline and got very few votes and took $0.00 money from special interest.

    2. Crescentia Rock says:

      This is wrong on average about 500 pipelines break a year through this country we have got to stop this because it just stops during our mother earth and save our sacred Waters no more Pipelines we must use renewable energy and go green we have the technology it’s just the greedy corporations Banks and politicians or destroying our world MIN WICONI

  7. Sara Polk says:

    Stop pipeline

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