SANDISFIELD >> A citizens group seeking to halt a new Tennessee Gas pipeline spur through Otis State Forest is planning to sue the Federal Energy Regulatory Commission (FERC) and Tennessee Gas Co. for allegedly violating the U.S. Clean Water Act.
The Sandisfield Taxpayers Opposing the Pipeline (STOP), has filed a "notice of intent" to the federal regulators and the company, a first step toward lawsuits to be filed at U.S. District Court in Springfield, according to Washington, D.C., attorney Alexander English.
As a specialist in Clean Water Act issues, English is lead counsel on the case for the Carolyn Elefant law firm, which has been involved in pipeline cases nationwide.
The citizens group contends that "because construction of the pipeline entails removal of hundreds of trees, including forestland protected by Article 97 of the Massachusetts Constitution, the project will cause significant harm to the environment and waterways of the state. Therefore, FERC's failure to comply with the Clean Water Act, which would have at least helped to protect these resources, is particularly disturbing."
On Feb. 11, the federal regulators approved the Tennessee Gas Pipeline Company's Connecticut Expansion Project, involving three loops along existing pipelines in Albany County in New York, Sandisfield, and Hartford County in Connecticut totaling about 13 miles. The company is trying to fast-track construction so the spurs could be put into service by next winter.
Tennessee Gas is an affiliate of Houston-based Kinder Morgan, the nation's largest pipeline company. The loops are part of the company's Connecticut Expansion Project to increase the flow of natural gas to three utilities in the state.
Elefant pointed out the case represents the first time that a FERC approval is being challenged through the citizens' suit provisions of the Clean Water Act. She noted that court challenges to the federal regulators under the Natural Gas Act have failed because they were dismissed on procedural grounds or the project was completed by the time the appeal was heard.
Under the Clean Water Act, English explained, 60 days advance notice is required for a lawsuit.
"Since Tennessee Gas doesn't have a permit from the Massachusetts Department of Environmental Protection for the pipeline construction, any sediment or oil and grease from machinery would make the work illegal," English said in an Eagle interview.
"In our view, if they undertake any work, including placement of construction equipment, without getting certification from Mass DEP under Section 401 of the Clean Water Act, they would be acting illegally," English said.
Any project activity "must not impact water quality or violate state water quality standards," he added.
The state DEP could become involved within the 60-day period, he noted, possibly by issuing a permit allowing construction to begin in the state forest.
"We will pursue all of our legal options to stop the pipeline because we feel it is unnecessary and does not respect the wishes of the local community," English said.
"The Connecticut Expansion Project will cross or potentially discharge into various rivers and streams within the state of Massachusetts," according to the citizens group' notice of intent. "Therefore, under the Clean Water Act, Tennessee Gas was required to seek certification from the state of Massachusetts that the project will not adversely impact water quality."
"Until this required state certification is obtained, the Clean Water Act expressly prohibits FERC from issuing a certificate authorizing the Connecticut Expansion Project," the notice contends.
Meanwhile, legal action on two other fronts could further delay the pipeline project. A hearing is set at Berkshire Superior Court on March 31 on Kinder Morgan's lawsuit seeking an injunction to allow eminent-domain condemnation along 15 miles of permanent and temporary easements in order to allow tree-cutting in the state forest to begin immediately.
Attorney General Maura Healey's office will represent the state and the DEP, which are listed among defendants in the lawsuit, in court.
The Sandisfield citizens' group has also filed at FERC a separate "motion to stay" the federal regulators' project approval in an effort to prevent tree-cutting in the state forest.
Contact Clarence Fanto at 413-637-2551.