BOSTON >> Will an out-of-state energy giant force the state of Massachusetts to hand over public land so it can build a fracked gas pipeline through a state forest? One judge recently agreed with the company, but the fight is far from over.
The Tennessee Gas Pipeline Company, a subsidiary of the Texas-based Kinder Morgan, filed suit against the commonwealth and the Department of Conservation and Recreation (DCR) in April, arguing that it could use eminent domain to seize several acres of the Otis State Forest in Sandisfield as part of its Connecticut Expansion pipeline.
Why did the company need to go to court? Article 97 of the Massachusetts state Constitution declares that a 2/3 vote in the state legislature is necessary to sell or otherwise hand over publicly owned land. The text of the law makes its intent clear: "The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment."
FERC v. Article 97
That's not particularly friendly to a giant gas company. Tennessee Gas argued that the approval the company received from the Federal Energy Regulatory Commission (FERC) under the Natural Gas Act meant that it could claim eminent domain to seize part of the forest to build their pipeline.
The state's attorney general office made the argument in Berkshire Superior Court that Article 97 gives the state legislature the unique power to determine whether such a project is in the public interest. Absent that required 2/3 vote, the DCR could not hand over the land.
The lawmakers who represent the area targeted by the corporation, Rep. William "Smitty" Pignatelli and Sen. Benjamin Downing, refused to introduce the bill; it was eventually put forward by another legislator, but went nowhere. That's when the company sued, setting up a case pitting a corporation's eminent domain rights against a state's interest in protecting public land.
Superior Court Judge John Agostini ruled that the corporation had the stronger legal case. But the court did not give Tennessee Gas an immediate green light. The company needs additional permits, and Attorney General Maura Healey is considering whether to appeal the decision. She must.
While the fight was immediately about how to use existing law to protect a few acres of land, pipeline opponents raised an array of broad concerns — from the dangers of explosions and the potential of leaking toxins in the air and water to the destruction of old growth forest. And there are substantial risks associated with gas pipelines even when they're functioning normally: namely climate change.
Methane leaks from every stage of the natural gas system — from well sites to processing plants and compressor stations. Methane is a potent greenhouse gas, and building more pipeline infrastructure — even when it is unnecessary to meet current demand — locks us into several more decades of fossil fuel infrastructure and will never get Massachusetts to targets set out by the legislature in the Global Warming Solutions Act.
So the fight over pipeline expansion in Otis State Forest is in fact tied to a growing international movement against fossil fuel development. Activists have vowed to challenge such projects anywhere and everywhere, whether it's the high profile Keystone XL tar sands pipeline or a few miles of fracked gas pipeline in Western Massachusetts. And it's a movement that has recorded some high-profile victories: Kinder Morgan's massive Northeast Energy Direct pipeline faced sustained opposition, and the company recently abandoned it entirely.
The climate change crisis demands taking bold action to keep fossil fuels in the ground, and making an urgent and necessary transition to clean, green energy. As the attorney general considers whether to appeal this decision, pipeline opponents in Sandisfield — and everywhere else — know the time to act is now.
Karina Wilkinson is a Massachusetts coordinator with Food & Water Watch.