Berkshire Superior Court judge pledges speedy review in Tennessee Gas Pipeline case

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PITTSFIELD >> Superior Court Judge John A. Agostini promised Friday to expedite his review of arguments over Tennessee Gas Pipeline Co.'s bid for access to land in Sandisfield as part of the company's Connecticut Expansion Project.

"I am going to get to this as quickly as I can," Agostini told attorneys representing the natural gas pipeline company and the state Attorney General's Office, which is contesting a company request to condemn through eminent domain land in Otis State Forest in the town.

The state has moved to block the company's action, contending it would violate the state constitution's Article 97 prohibitions on construction on conservation land, such as within the state forest.

Tennessee Gas is seeking an injunction in Superior Court to allow the eminent domain process to proceed. The company plans a 13-mile gas line expansion project that includes three pipeline loops to increase capacity, involving four miles in Sandisfield.

Shorter extensions are planned in Bethlehem, N.Y., and from Agawam to Hartford County, Conn. The additional gas supplies would be provided to three utilities in Connecticut.

Agostini listened to attorney arguments and closely questioned both sides during the two-hour hearing, which played out before a packed courtroom.

The session followed a noontime rally outside the courthouse attended by nearly 200 opponents of the Connecticut Expansion Project and the much larger $5 billion Northeast Energy Direct gas line project the company plans, which would cross Massachusetts — including state conservation land in the Berkshires.

"I've heard some very thoughtful arguments, and these are difficult issues," the judge said.

He also said several times that is seems likely the dispute is destined to continue on to the state Supreme Judicial Court and perhaps beyond that level.

Assistant Attorney General Matthew Ireland, representing the state, and attorney James Messenger, representing Tennessee Gas, a subsidiary of energy giant Kinder Morgan, each laid out their arguments on the injunction and eminent domain requests.

Messenger asserted that the 1938 U.S. Natural Gas Pipeline Act and subsequent court rulings based on the act allow federal project approvals to trump state restrictions. In this case, he said, the interstate pipeline expansion project received Federal Energy Regulatory Commission approval on March 11 after an extensive review process.

He argued that such actions as eminent domain takings have been upheld in court cases even before all project permits were in hand, such as for tree-cutting, as will be required around the pipeline route in Sandisfield.

In similar cases, Messenger said, "every court has granted immediate possession" of the land to the company.

He asserted that "all the arguments [being made by the state] have been tried before and rejected," adding that "they are doing everything they can to delay a federally anticipated project."

The company contends that if it is unable to meet a Nov. 1 construction timeline to fulfill contracts to supply Connecticut utilities with natural gas before next winter, it will suffer financial harm.

Ireland argued, however, that the issue involving Article 97 and the constitutional conservation protections raises questions not addressed previously concerning the Natural Gas Act. He added that Article 97 does not, like other state restrictions, attempt a "blanket prohibition" of gas line projects.

Nothing in the federal act specifically pre-empts such environmental protections, he said, adding the Massachusetts provision is unique among the 50 states.

He also argued that in terms of fairness and reason the Legislature should have an opportunity through the end of the legislative session in July to vote on whether to grant an easement as allowed under Article 97.

Given that the company still lacks FERC permits it needs for tree cutting, "there is no need to get on the property immediately," Ireland said, adding that those permit approvals are "unlikely anytime soon."

If the Legislature doesn't approve an easement, which requires a two-thirds majority vote, or fails to take a vote by July, the company's bid for relief from the court "is more clearly an issue" than currently, Ireland said.

At the moment, he argued "they very clearly don't have what they need to proceed [with the work]."

Agostini at one point said he found Ireland's arguments against an immediate injunction in favor of the company to have merit, in part because he believes the dispute will not end at the Superior Court level and because other permits will be required before work on the state forest land can proceed.

The judge also agreed with Messenger's argument that most court decisions over the years have upheld the federal sovereignty aspects of the Natural Gas Act and similar law as necessary to make possible interstate projects.

He said he questions whether successfully arguing at a higher court for an exemption for the state's Article 97 provision might "chip away at what has kept us together as a country."

Contact Jim Therrien at 413-496-6247.


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