Decision expected in April on review of pipeline expansion through Otis State Forest

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SANDISFIELD — Opponents of a Tennessee Gas Pipeline expansion project that would cut through Otis State Forest in Sandisfield are claiming a legal victory following a ruling by the U.S. First Circuit Court of Appeals in Boston.

Tennessee Gas, an affiliate of Kinder Morgan, was trying to cut short a final review by the Massachusetts Department of Environmental Protection of a water quality application needed by the company to proceed with its $93 million Connecticut Expansion Project, which would bring additional natural gas supplies to three distributors in Connecticut.

The court ruling rejected the pipeline company's legal arguments, therefore allowing the DEP to complete its full review of the project and issue a finding on the project, said attorney Richard Kanoff of Burns & Levinson in Boston, representing 16 individuals and the Berkshire Environmental Action Team (BEAT) in the federal court.

The state agency's decision on the water quality application is expected in early April, Kanoff added.

"Whoever loses — the company or the citizen opponents — has the opportunity to return to the U.S. First Circuit Court of Appeals," he told The Eagle.

"Although we are disappointed with the court's decision, we are confident that we will successfully complete the permit processes and look forward to executing on this project to increase deliveries of clean, domestic natural gas for New England consumers," said Richard N. Wheatley, corporate communications and public affairs director for Kinder Morgan in Houston.

The company has been aiming to construct the pipeline this summer and put it into service this November.

The proposed four-mile pipeline loop through Sandisfield, including two miles of state-protected woodlands, affects Lower Spectacle Pond in Otis State Forest as well as nearby streams and wetlands.

"This court decision has potential ramifications for interstate gas pipeline cases nationwide," said Kathryn Eiseman, president of the Pipe Line Awareness Network for the Northeast.

Eiseman was among the petitioners who filed the appeal to the federal court as a precaution last summer after they were sued by Tennessee Gas at U.S. District Court in Boston. The company claimed that the 1938 U.S. Natural Gas Act barred additional state agency review of clean water requirements.

"The most important national implication of the ruling concerns the requirement that only final state orders or actions are subject to appeal under the Natural Gas Act," attorney Kanoff said.

According to Eiseman, the case sets limits on the powers of the federal Natural Gas Act to override individual states' decisions on permits for pipelines that cross state lines.

BEAT and the citizens contended that the state agency review should be allowed to proceed to a final decision. In its Wednesday ruling, the appeals court in Boston agreed, dismissing the petitioners' appeal and clearing the way for a final ruling by the Massachusetts DEP, which issued a preliminary approval last year.

The ruling Wednesday was issued by three judges on the First Circuit Court of Appeals, including retired U.S. Supreme Court Justice David Souter.

The 18-page court decision rejected Tennessee Gas arguments as "pushing back on a common-sense conclusion (with) little if any persuasive force."

The petitioners included Jane Winn of BEAT, Eiseman, Rosemary Wessel of No Fracked Gas in Mass., Jean Atwater-Williams of the Sandisfield Taxpayers Opposing the Pipeline and other state residents.

Opponents have argued that tree-cutting and pipeline construction would threaten the 400-year old, state-protected Eastern Hemlock forest and create other negative environmental impacts along the route affecting wildlife and native species.

The Connecticut Expansion Project includes 13.4 miles of loops and spurs, including the one through Otis State Forest on a route alongside two existing Tennessee Gas pipelines. The others are in Bethlehem, N.Y., near Albany, and from Agawam into northern Hartford County, Conn.

The project first proposed by Kinder Morgan in August 2014 has jumped through multiple legal hoops amid continuing strong opposition from environmental groups and some residents of Sandisfield. It was approved by federal regulators last March.

Last month, Berkshire Superior Court Judge John Agostini authorized a settlement between the state and Tennessee Gas Co. The settlement is valued at more than $1.2 million, according to State Attorney General Maura Healey's office.

The agreement included $300,000 to the Department of Conservation and Recreation to identify and acquire additional conservation land in the vicinity of the state forest; $300,000 toward mitigation and improvements to Otis State Forest; $40,000 for the fair market value of pipeline easements, and payment by Tennessee Gas for the cost of environmental monitors and other mitigation, estimated at more than $640,000.

Tribal concerns regarding ceremonial stone landscapes in the pipeline's path remain unresolved. Doug Harris, deputy tribal historic preservation officer for the Narragansett Indian Tribe, will give a presentation on the history and cultural significance of these sacred sites at 6 p.m. Wednesday at the First Church of Christ, Congregational at 27 East St. in Pittsfield.

Reach correspondent Clarence Fanto at cfanto@yahoo.com or 413-637-2551.


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