State Attorney General Maura Healey has signaled that her office plans to confront Kinder Morgan's Tennessee Gas Co. in court over access to Otis State Forest in Sandisfield to construct its new natural gas pipeline spur serving three utilities in Connecticut.
Kinder Morgan filed suit in Berkshire Superior Court last week seeking an injunction to allow immediate tree-cutting to begin along the nearly four-mile pipeline loop that cuts through state-protected land in Sandisfield.
The court filing listed the Commonwealth of Massachusetts, the Department of Conservation and Recreation and its commissioner, Leo P. Roy, among the defendants.
Healey's office confirmed that it will represent the state and the DCR and will file in opposition ahead of a court hearing on the case.
"Our state Constitution protects conservation land across Massachusetts, including Otis State Forest," Healey stated in an email message to The Eagle. "Any company with plans to build on or re-purpose state-protected land has an obligation to fully comply with the requirements set forth in our Constitution."
Article 97, an amendment to the constitution, shields state-designated land from development. The state acquired as conservation land the woodlands including Spectacle Pond Farm for $5.2 million in 2007.
Kinder Morgan is seeking the court injunction because federal environmental guidelines limit tree-clearing to a period between Oct. 31 and March 31 through the provisions of the Endangered Species Act. The company's construction schedule aims to put the pipeline into service next winter to supply the Connecticut utility companies with additional natural gas.
The court document asks for immediate eminent-domain condemnation of more than 15 miles of permanent and temporary easements through the state forest. The company argued that "it is indisputable that the DCR is unwilling to enter into a voluntary agreement to transfer the easements to Tennessee Gas unless it is approved by a two-thirds vote of the state legislature."
Kinder Morgan officials explained that they sought the court injunction because state lawmakers had failed to act on proposed legislation that would have granted the company a waiver from Article 97, allowing the pipeline construction to proceed through the protected state land.
Company spokesman Steve Crawford told The Eagle: "After the completion of a full environmental review, a public comment period and the development of extensive mitigation and land protection measures, Tennessee Gas Pipeline received its environmental certificate from the state."
He added, "Despite the issuance of that state certificate and nearly two years of working with state and local officials to coordinate and obtain approvals, the Legislature has not approved the easements for the Sandisfield loop; nor does it appear likely to do so."
Separately, the Sandisfield Taxpayers Opposing the Pipeline (STOP) has filed a "stop motion" to the Federal Energy Regulatory Commission (FERC) in an effort to delay the so-called Connecticut Expansion Project.
The group contended that by approving the pipeline extension, the regulators violated their own requirement to obey federal and state permitting and laws before the state grants a permit through the Clean Water Act.
The STOP group also argued that the FERC approval is in direct conflict with Article 97 "which does not permit private companies like Tennessee to construct on public lands without the appropriate consent of the legislature, and the consent of the landowner who conveyed the land to the state for protection."
"In essence, the commission has authorized eminent domain authority without the Commonwealth having had even the chance to negotiate an easement under Article 97," the opposition group said.
State Rep. William "Smitty" Pignatelli, D-Lenox, had contacted Healey's office as well as Lt. Gov. Karyn Polito and U.S. Rep. Richard Neal, D-Springfield, last Thursday seeking intervention to block the pipeline loop, part of 14 miles of separate extensions in eastern New York and northern Connecticut.
He described the $87 million project as a "test case" signaling that the federal regulators will approve Kinder Morgan's application to build its proposed $5 billion, 412-mile pipeline through upstate New York, western Massachusetts, including seven Berkshire County towns, and southern New Hampshire, terminating in Dracut.
"We've been FERC'd," Pignatelli stated.
In a related issue, Sandisfield officials complained that a proposed $1 million compensation fund to restore town roads and other facilities affected by the impending pipeline project had been set aside by the company.
Crawford said the company "continues to work with the town's representatives and we're optimistic that we can reach an agreement."
Contact Clarence Fanto at 413-637-2551.