As clock ticks toward pipeline approval, foes look to lawmakers, attorney general

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A Berkshire Superior Court ruling that would clear the way for the Tennessee Gas pipeline expansion through state-protected land in Sandisfield is set to take effect in six weeks — unless state lawmakers or Attorney General Maura Healey intervene.

The project that would cut through more than two miles of 400-year-old woodlands in Otis State Forest was approved May 9 in a memorandum by Superior Court Judge John Agostini.

But he delayed a final, binding ruling until July 29 to give state lawmakers time for a vote on whether to override by a two-thirds majority Article 97 of the Massachusetts constitution that guards state-protected land from pipelines or other intrusions.

Project opponents have called on Healey's office to appeal Agostini's decision that would grant Kinder Morgan, the parent company of Tennessee Gas Pipeline Co., a preliminary injunction allowing construction of a new pipeline along its existing route through Sandisfield to pump additional natural gas into Connecticut for distribution by local utilities.

"We're still trying to weigh the options on whether we need to vote or should vote," said state Rep. William "Smitty" Pignatelli, D-Lenox, whose 20-town district includes Sandisfield.

In an interview on Tuesday, he expressed hope that Healey's office will appeal the ruling and "use her office to implement whatever leverage it can to honor the agreement [Kinder Morgan] made with Sandisfield." The company has suggested that it would repair roads, bridges and other town land affected by pipeline construction.

If stopping the pipeline is a "lost cause," Pignatelli added, "we want to do everything possible to hold the town of Sandisfield harmless."

Legislation that would exempt Otis State Forest from constitutional protection remains on hold in the Committee on State Administration and Regulatory Oversight. State Rep. Peter Kocot, D-Northampton, who chairs the committee, has said he is still seeking details on agreements made by Tennessee Gas with the town of Sandisfield and with the state DCR to ease pipeline construction impacts.

In a statement issued late Monday, Chloe Gotsis, a spokeswoman for the attorney general, declared that "our office is not pursuing an immediate appeal of the preliminary injunction granted to Kinder Morgan."

"We are pleased the judge stayed his order until July 29, recognizing the critical role of the Legislature in determining the status of conservation land and allowing time for the legislative process to run its course," the statement continued. "We are continuing to evaluate all of our legal options going forward, including appeal of the underlying decision once it becomes final."

The 60-day window for any potential appeal opens July 29.

Federal regulators had approved Kinder Morgan's Connecticut Expansion Project in March. Three new pipeline loops would follow 13.4 miles of an existing route in three segments — about four miles in Bethlehem, N.Y., 3.8 miles in Sandisfield, including 2.3 miles through Otis State Forest, and about five miles in northern Hartford County.

Agostini's ruling upheld the right of the company under the 1938 U.S. Natural Gas Act to use eminent domain to access the state land, thus overriding the protection of the Massachusetts Constitution. He sided with Tennessee Gas attorneys who argued that the federal law allows natural gas companies right-of-way authority to land across state lines for projects to assure supply capacity.

His ruling also cited the Federal Energy Regulatory Commission's approval of the project as evidence that it would benefit the public interest.

Tennessee Gas sought the Superior Court motion for an injunction so it could access the land to begin tree cutting and other preliminary work. Healey's office opposed the motion during a hearing in April, arguing that Article 97 of the Massachusetts Constitution prohibits such use of protected conservation land without a two-thirds vote of the state Legislature.

Sandisfield resident Jean Atwater-Williams, who heads S.T.O.P. (Sandisfield Taxpayers Opposing Pipeline), has pointed out that unless state lawmakers approve an exemption from the constitution's shield, the state must protect the land it paid $5.2 million to acquire a decade ago.

She and other residents have voiced anxiety over potential damage to Otis and Sandisfield roads from pipeline project trucks as well as the company's plans to use Spectacle Pond within the state forest to flush the new line.

"If this land cannot be protected, what land can be?" Atwater-Williams asked Assistant Attorney General Matthew Ireland during a "listening session" Healey's office held in Pittsfield three weeks ago.

Although Ireland sought to assure her and other audience members that "this isn't over," he offered no encouragement that Healey's office would pursue an appeal pitting state law against a federal law passed just before World War II designed to clear the way for natural gas pipeline construction across state lines.

Opponent Kathryn Eiseman, whose Massachusetts PipeLine Awareness Network has worked closely with the Sandisfield group, acknowledged that exceptions from the constitutional shield guarding state-protected land "are actually very common, but usually the change in use is supported by the local legislators and the local community."

"What's different here is that the people of Sandisfield have opposed the change," she told The Eagle, adding that local lawmakers have not approved any plan to compensate the community for the impact on its road and land.

Eiseman also objected that the state office of Energy and Environmental Affairs (EEA) has not explained the terms of any compensation arrangement to state lawmakers.

In addition, Jack Murray, commissioner of the EEA's Department of Conservation and Recreation during Gov. Deval Patrick's administration, has been working for Kinder Morgan as the Northeast director of public affairs since August 2015.

"The general sense of people I talk to is that EEA (of which DCR is a part) is attempting to forfeit this protected land for a pittance and be done with it," Eiseman argued. "The Attorney General should be representing the broader interests of the commonwealth rather than going along with this agency's agenda."

According to a statement issued late Tuesday by Katie Gronendyke, EEA press secretary, "The Baker-Polito Administration will continue to responsibly steward the Commonwealth's natural resources as the federal government considers the region's natural gas supply needs."

EEA officials also pointed out that FERC, not the state or any of its agencies, is the regulatory agency that reviews and approves the construction of interstate pipelines.

As compensation for Sandisfield, the officials added, state agencies have put together at least $539,000, as well as an additional amount still to be determined, to offset project impacts to at least 21 acres of temporary and permanent easements along the construction route of the new pipeline.

"Whatever happens," Eiseman stated, "we want to make sure that the town of Sandisfield is made whole. I still believe that an appeal is the most appropriate path forward."

Contact Clarence Fanto at 413-637-2551.


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