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.
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.
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.”
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.
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.
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…”