Clarence Fanto | The Bottom Line: Pipeline dispute a legal tangle of conflicting interests
LENOX — At the risk of over-simplification, it was a good week for opponents of two natural gas pipeline projects in our region and a setback, perhaps only temporary, for Kinder Morgan and its affiliate, the Tennessee Gas Pipeline Co.
Legal documents have been ricocheting among Kinder Morgan attorneys, federal regulators, state Attorney General Maura Healey's office and citizen-led opposition groups.
The proposed major pipeline stretches 412 miles from central New York state to northeast Massachusetts, passing through seven Berkshire towns. Then it snakes through the Pioneer Valley, veers into southern New Hampshire through 17 communities and then turns south to the existing pipeline terminal in Dracut, near Lowell.
The Northeast Energy Direct Project, would cost an estimated $5 billion and the company's application is under scrutiny by the Federal Energy Regulatory Commission (FERC). The company hopes for approval by this November so it can construct the pipeline and get the natural gas flowing by late 2018.
Given the intensity of the opposition, the complexity of the proposal and a segment of the route that passes through state land protected from development by Article 97 of the Massachusetts Constitution, that timeline seems dubious.
Project supporters insist that the additional natural gas is needed in order to ease energy-cost burdens and to give distributors like Berkshire Gas Co. more supplies so it can connect new customers in its Pioneer Valley service area.
Opponents maintain there's no proven shortage of natural gas in New England, citing a study commissioned by Healey that additional supplies are not needed by the region's electricity generating plants. The company blasted that study as flawed because it was confined to the requirements of the power grid and did not examine the demand for more natural gas from local and regional distributors.
Federal regulators have rarely, if ever, rejected a pipeline proposal, and the company often cites the U.S. Natural Gas Act, which clears the way for interstate pipeline construction and appears to override state laws and regulations as well as local permitting requirements.
Anyone who claims the ability to predict the regulators' ruling on the Kinder Morgan application is whistling in the wind. But it's safe to say that if the project wins approval, it will wind up as a hard-fought legal battle.
Meanwhile, more than 400 property owners who have refused to grant company surveyors access to their land along the pipeline route in Massachusetts are fighting the state Department of Public Utilities, which could give Kinder Morgan eminent-domain rights to enter these properties. On Tuesday night, the intensity of opposition was on full display at a DPU hearing in Pittsfield, the first of six statewide. The DPU has rarely if ever sided with local property owners.
On another front, the fate of a much smaller project is on the line in Berkshire Superior Court. Kinder Morgan's Connecticut Expansion Project, an $87 million, 13-mile series of loops in eastern New York, southeastern Berkshire County and the Agawam area, aims to pump more natural gas for three Connecticut distributors.
A four-mile stretch through Sandisfield, including just over two miles across state-protected land in Otis State Forest, is contested by the Sandisfield Taxpayers Opposing the Pipeline (STOP), as well as the Massachusetts Pipeline Awareness Network (Mass PLAN), the state Attorney General's Office and state Rep. William "Smitty" Pignatelli.
Federal regulators approved this project three weeks ago, and the company sought to begin cutting trees in the state forest immediately to meet federal environmental deadlines that require the work to end by May 1 at the latest. But the STOP group objected and the regulators ordered the company to explain how its project would affect state-shielded woodlands and to justify why it should be allowed to override state law.
Kinder Morgan attorneys argued that state and federal courts in Massachusetts, Louisiana and elsewhere have ruled that approved pipeline projects override state laws and constitutions.
This is a classic confrontation between federal law and the Massachusetts Constitution, which forbids encroachment on protected land unless the Legislature grants an exception by a two-thirds majority. The lawmakers have shown no inclination to do so.
Since the state invested $5.2 million a decade ago to protect the old-growth state forest, Healey's office filed an emergency motion to block Kinder Morgan's attempt to win a court order condemning the route through the woodlands and seizing it by eminent domain.
Superior Court Judge John Agostini postponed a climactic March 31 hearing, setting a deadline this Friday for all sides to submit documents ahead of a new hearing date on April 15. As the judge acknowledged in his ruling, "It is obvious that this litigation presents very complex and significant issues" and that the court "has a very limited understanding of the nature of the dispute and the various issues that need to be resolved."
In its legal filing, the company stressed the need for speed, that it requires "immediate condemnation and entry" to the forest so it can clear the trees along the route, start construction on June 1 and put the pipeline spur into service by Nov. 1.
"Any delay jeopardizes Tennessee's ability to meet these timelines, would result in increased construction costs and injure Tennessee's customers by preventing them from meeting supply forecasts provided to their customers and regulators," the attorneys contended.
Whichever way Judge Agostini rules, expect more legal challenges, possibly in federal court, and look for the victorious side to claim that the outcome sets a precedent for the huge Northeast Energy Direct Project.
There's no middle ground here. Either a pipeline is built or it's not. The only compromise would be a new route that avoids state-protected land. Ultimately, that would not satisfy project opponents, though some may fantasize the company might walk away.
So far, there's no credible evidence that Kinder Morgan and its Tennessee Gas Co. affiliate are ready to wave a white flag.
Contact Clarence Fanto at firstname.lastname@example.org.
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