Tennessee Gas Pipeline Co. is firing back against a Sandisfield citizens group seeking to block the start of construction activity on a nearly four-mile pipeline spur that would cut through state-protected land in Otis State Forest.
In a legal filing late Tuesday, company attorneys urged the Federal Energy Regulatory Commission (FERC) to reject a March 17 motion by Sandisfield Taxpayers Opposing the Pipeline (STOP) seeking to prevent immediate tree-cutting. The regulators had approved the pipeline project on March 11.
Kinder Morgan, parent company of Tennessee Gas, is seeking a quick start by taking down trees on the Sandisfield loop, one of three comprising the 13-mile, $87 million Connecticut Expansion Project, in order to start pumping additional natural gas to three utilities in that state by Nov. 1. Federal environmental regulations require any tree-cutting to end by March 31 unless the U.S. Fish and Wildlife Service grants a one-month extension.
The state of Massachusetts is also trying to delay the project, arguing that Article 97 of the state constitution protects the woodlands unless state lawmakers grant an exemption, which they have declined to do.
The company has filed an injunction against the state and the Department of Environmental Protection in Berkshire Superior Court seeking an immediate start to construction. Attorney General Maura Healey's office and company attorneys will argue the case at a court hearing at 2 p.m. March 31.
Attorneys for Kinder Morgan contend that the STOP group has not shown that the project "will cause irreparable harm to STOP or its members."
On the contrary, they argue, since the regulators have approved construction and operation of the pipeline spurs as a matter of "public convenience and necessity," a delay "would cause substantial harm" to Tennessee Gas and its customers requiring the additional supply provided by the project.
The company asserted that it has "complied fully" with the environmental conditions required by FERC and is "within its rights to initiate limited non-mechanized tree-clearing activities."
Tennessee Gas also told regulators it "will fell trees using hand-held equipment only and will use equipment that will not rut soil or cause damage to root systems." Tennessee stated that will leave felled trees in place until it receives a formal approval to proceed with pipeline construction.
Kinder Morgan noted that FERC approved the project because it would not "significantly affect the quality of the human environment," that all of its additional natural gas will be purchased by three Connecticut utilities and that the project "minimizes impacts on landowners and surrounding communities to the greatest extent possible by co-locating it with existing pipeline rights-of-way."
The team of attorneys told federal regulators that "STOP's alleged injuries can be redressed with economic compensation and do not rise to the level of irreparable harm." They turned aside the group's argument that two of its members who own property along the route would suffer harm based on the impact of the pipeline's construction and operation.
"These asserted harms, even assuming the allegations are true, do not establish irreparable injury because STOP fails to acknowledge" measures the company will take to reduce the impact on the properties, the attorneys stated.
The Kinder Morgan document pointed out that the two property owners, Heather Morrical and Jeffrey Friedman, have signed easement agreements with Tennesee Gas compensating them in connection with the construction work.
Morrical and Friedman were not immediately reachable for comment.
Contending that courts have ruled that any injury to property owners "must be both certain and great, actual and not theoretical a mere possibility of irreparable harm is insufficient," the attorneys declared that STOP has failed to provide proof that "harm has occurred in the past and is likely to occur again, or proof indicating that the harm is certain to occur in the near future."
The company also committed to carrying out "mitigation measures" sought by the Sandisfield Conservation Commission and any additional steps required by the U.S. Army Corps of Engineers.
But Kinder Morgan maintained that STOP has only provided "unsupported assertions" rather than any evidence that it would suffer definite, major and irreparable harm if the pipeline project goes forward.
However, the parent company argued that Tennessee Gas would suffer from a delay because "the construction of natural gas pipelines is a complex, interdependent, time-sensitive process designed to accomplish numerous tasks during time periods that avoid or minimize environmental impacts."
Without approval to begin immediately, the attorneys declared, tree-cutting would be delayed until well into autumn, preventing completion of the pipeline project by Nov. 1 and the three utility distributors thus would lack additional natural gas supplies needed before next winter's heating season.
"Tennessee also risks losing substantial money and incurring significant increased construction costs if it fails to meet the Nov. 1 deadline," the legal document stated.
As for the confrontation with the state over the constitution's protection of Otis State Forest, Tennessee Gas argued that it worked with the Department of Conservation and Recreation to minimize impacts on the woodlands "to the greatest extent possible."
The company cited its two existing pipelines through the forest that have operated for more than 30 years, noting that the new loop would only widen the right-of-way by 15 to 35 feet.
The attorneys acknowledged that DCR has not authorized temporary easements to allow construction permits, nor has the state Legislature approved the pathways through the state forest since a bill filed last July has now been sidelined on Beacon Hill.
Contact Clarence Fanto at 413-637-2551.
Three legal confrontations are underway as Kinder Morgan's Tennessee Gas Pipeline Co. seeks to begin immediate construction activity on a four-mile pipeline spur in Sandisfield, including part of Otis State Forest:
• Kinder Morgan's attorneys are urging federal regulators to reject an effort by a Sandisfield citizens' group to delay tree-cutting in the state forest, arguing that the company would suffer harm and lose money if it cannot proceed immediately to meet a Nov. 1 pipeline in-service deadline.
• A Tennessee Gas court injunction against the state, including the Department of Conservation and Recreation, to remove legal roadblocks to the project will be heard in Berkshire Superior Court on March 31. Representatives of Attorney General Maura Healey's office will defend the state.
• Attorneys for the Sandisfield Taxpayers Opposing the Pipeline (STOP) have notified Tennessee Gas and the Federal Energy Regulatory Commission of its intention to sue both of them in U.S. District Court in 60 days to stop the pipeline because its approval allegedly violates the U.S. Clean Water Act.