PITTSFIELD — A courtroom showdown pitting Kinder Morgan's Tennessee Gas Pipeline Co. against State Attorney General Maura Healey and the small town of Sandisfield is set to play out at Berkshire Superior Court on Friday afternoon.
During a 1 p.m. hearing before Judge John Agostini, Tennessee Gas will argue that it be permitted to condemn via eminent domain a two-mile swath of protected land through Otis State Forest in Sandisfield.
The company aims to construct a pipeline spur by Nov. 1 to provide additional natural gas supplies to three utilities in Connecticut. It has filed a lawsuit against multiple defendants for immediate access to the land.
The state, however, has sought to block the condemnation process, prompting the company to seek an emergency injunction against the state action.
Opposition groups led by the Pittsfield-based Berkshire Environmental Action Team (BEAT) have scheduled a rally outside the courthouse at 11:30 Friday morning.
The company's 13-mile, $87 million Connecticut Expansion Project includes three loops — a total of four miles in Sandisfield and shorter extensions in Bethlehem, N.Y., near Albany and from Agawam into northern Hartford County, Conn.
The legal confrontation centers on Tennessee's case that its right to construct an interstate pipeline project approved by federal regulators under the 1938 U.S. Natural Gas Act overrides state and local laws or permit requirements.
But attorneys from Healey's office have filed a 64-page document with the court contending that the state constitution's Article 97 protecting designated land forbids pipeline construction through Otis State Forest and other conservation land.
Opponents and advocates of the much larger $5 billion, 412-mile Tennessee Gas project known as Northeast Energy Direct are closely watching the court case. The 64-mile mainline route through Massachusetts would traverse at least 12 miles of state-protected Article 97 land, including a slice of Pittsfield State Forest in Hancock and Lanesborough, and the Appalachian Trail Corridor in Dalton.
State Senate President Stanley Rosenberg has predicted that the case could reach the U.S. Supreme Court to determine whether the federal Natural Gas Act overrides the Massachusetts Constitution. Some legal specialists doubt that the state can prevail.
Article 97 "protects conservation land like the Department of Conservation and Recreation land where Tennessee seeks to build the project and is NOT pre-empted by the Natural Gas Act," Assistant Attorney General Matthew Ireland wrote. "In sum, there is no legal or equitable basis for the extraordinary relief Tennessee seeks."
The state Attorney General's office also urged the court to deny Tennessee's injunction as premature because federal approvals and permits for the tree-cutting are incomplete.
Although the Federal Energy Regulatory Commission approved the Connecticut Expansion Project on March 11, it has withheld a permit for the tree-cutting work pending further information from the company.
"Indeed, FERC has not yet authorized Tennessee to begin project construction and it is unlikely that FERC will authorize any construction in time for Tennessee to complete such work prior to seasonal restrictions imposed by the federal government to protect nesting birds and other species," Ireland wrote.
"In all likelihood," he added, "FERC will not authorize Tennessee to clear trees and begin construction until October 2016."
The company has stated in its own filing that it needs to put the pipeline extension into service by November of this year to fulfill agreements with the Connecticut utilities for more natural gas supplies before next winter.
Noting that legislation to authorize Tennessee to do the work is still pending in the state Legislature, Ireland stated that lawmakers "could act to moot this case at any time." Approval of the project's tree-clearing work on conservation land requires a two-thirds vote on Beacon Hill.
To support his argument, Ireland stated that the U.S. Supreme Court has "held repeatedly that a state has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air."
The state spent $5.2 million in 2007 to add 900 pristine acres to Otis State Forest, including Spectacle Pond Farm and 15 acres of 400-year-old eastern hemlock old-growth forest. The protection of the land was "among the most significant and costly conservation land purchases in the Commonwealth's history," Ireland wrote.
Kinder Morgan is pressing for a quick decision so Tennessee Gas can begin tree-cutting in the state forest before a possible extension of federal deadlines for such work expires by May 1.
But U.S. Sen. Elizabeth Warren, D-Mass., in a strongly worded letter to U.S. Fish and Wildlife Regional Director Wendi Weber in Hadley, urged the agency to reject Kinder Morgan's request for an extension. Tree-cutting work is normally banned after March 31 to protect migratory birds as well as the northern long-eared bat listed as threatened under the Endangered Species Act.
Warren noted that federal regulators have yet to approve the Connecticut Expansion Project's tree cutting and that Kinder Morgan has not been granted authority by state lawmakers in Boston to seize conservation lands shielded by the Massachusetts Constitution.
"I am troubled by Kinder Morgan's attempts to circumvent federal and state requirements and demand hasty approval of tree-clearing and other potentially damaging activities," Warren wrote. "The Connecticut Expansion Project has substantial implications for conservation efforts in Massachusetts and it should not be rushed forward without full consideration of those impacts."
Warren urged Weber to "reject the company's request to extend the March 31 deadline for tree-clearing and to ensure that Kinder Morgan's efforts do not come at the expense of critical environmental protections."
In response, Kinder Morgan spokesman Richard Wheatley told Boston.com that the company "takes its commitment very seriously regarding environmental protection and compliance with applicable laws and measures for protecting the natural habitat and critical and endangered species."
"The Connecticut Expansion Project received an extremely thorough review during the certificate application process by the Federal Energy Regulatory Commission and other agencies," Wheatley said. "Our overarching goal is to continue to be a good environmental steward and employ sound protective measures regarding the environment and natural habitat as we seek access to begin work on the federally approved project."
Information from the Greenfield Recorder was included in this report.
Contact Clarence Fanto at 413-637-2551.
Mass Audubon Filing . . .
Here is a summary of the document filed by Mass Audubon, ahead of Friday's Berkshire Superior Court hearing, supporting the state's effort to prevent Tennessee Gas Pipeline Co. from beginning tree-cutting work in Otis State Forest for its Connecticut Expansion Project:
Mass Audubon, in a friend-of-the-court brief, argued that it "played a crucial role in the property's conservation and conveyed its interest in the property to the state Department of Conservation and Recreation for use as permanently protected open space under Article 97" of the state constitution.
The organization's attorneys contend that Article 97 is not pre-empted by the U.S. Natural Gas Act and that Mass Audubon established a charitable trust when it conveyed the property to the state.
Thus, "the DCR and the commonwealth are obligated to honor Mass Audubon's intent that the property be protected as open space under Article 97." In 2006, Mass Audubon had acquired a $1.5 million interest in part of the Lower Spectacle Pond property to help protect it from proposed development before selling it to the state a year later for $1.7 million.