Judge allows Tennessee Gas access in Sandisfield, but stays order until July 29
PITTSFIELD — A Berkshire Superior Court judge has upheld Tennessee Gas Pipeline Co.'s authority to access a 2.3-mile section of Otis State Forest in Sandisfield as part of a gas pipeline upgrade project but has stayed that order until July 29.
Judge John A. Agostini's 21-page ruling comes on a request from Tennessee Gas for injunctions to access the land for tree cutting and other aspects of the project, which in March won Federal Energy Regulatory Commission approval.
The company's motion was opposed during a hearing in April by the state Attorney General's Office, which argued that Article 97 of the Massachusetts Constitution prohibits such use of protected conservation land without a two-thirds vote of the state Legislature.
Both sides said later Monday they are reviewing the decision and considering possible further legal steps.
Agostini sided with attorneys representing Tennessee Gas that federal legislation allows natural gas companies right-of-way authority to land for projects to ensure an adequate supply of gas. The FERC approval, he wrote, also is evidence that the federal regulatory agency has determined the project "advances the public interest."
The judge also stayed the injunction until July 29 to allow the Legislature an opportunity to bring the issue of use of the conservation land to a vote. He also noted that Tennessee Gas still lacks final environmental state and federal permits needed to work at the site, and could not proceed regardless until those are obtained.
The issues raised could be appealed further. A statement released by Chloe Gotsis, a spokeswoman for the Attorney General's Office, said, "We are disappointed in Judge Agostini's decision to grant Kinder Morgan's request for a preliminary injunction. We are pleased, however, that the judge stayed his order until July 29, recognizing the critical role of our state Legislature in determining the status of conservation land and allowing it the time to act. We are reviewing today's decision and considering our options moving forward."
Kinder Morgan is the parent firm of Tennessee Gas Pipeline.
The company plans its 13-mile Connecticut Expansion Project project near existing gas lines to include three pipeline loops to increase capacity, involving four miles in Sandisfield.
The project is separate from the larger $5 billion Northeast Energy Direct gas line project the company had proposed to extend a new line across Massachusetts, which has been suspended.
A statement issued by Kinder Morgan on Monday evening said, "Tennessee Gas Pipeline appreciates the care and attention taken by the Massachusetts Superior Court to review this matter. We are pleased that the court applied the ample legal authorities which allow access to and use of property necessary to build an interstate pipeline project approved by the Federal Energy Regulatory Commission. We are continuing to review the decision and will consider our options, and we look forward to working cooperatively with stakeholders involved in this project."
State Rep. William "Smitty" Pignatelli, D-Lenox, a staunch opponent of the project, said the decision seems to indicate that, even if the Legislature votes to deny the gas company permission to do the work, the federal approvals would supercede the state's decision.
However, Pignatelli said he and state Rep. Steve Kulik, D-Worthington, with whom he has worked on the gas project issues, favor a vote in the Legislature against allowing work in the state forest.
He said he will first seek legal guidance from the AG's office, but believes, "the Legislature should at least act on it. We should go on record as a legislative body."
Such a vote could be supportive of the state's position if the matter is appealed to a higher court, Pignatelli said, adding, "I am not ready to give up."
In addition, he said, the gas line expansion will benefit utility customers in Connecticut, not customers in Massachusetts. "If this expansion is so important to Kinder Morgan, give it to Connecticut," he said.
Jane Winn, executive director of the Berkshire Environmental Action Team, said after the ruling was filed, "We are extremely disappointed that the judge didn't stand up and protect our most important places to protect."
She said, "Article 97 should not be overridden. There is no reason they could not have gone around [the conservation area]."
Winn said she hopes the decision will be appealed to the state Supreme Judicial Court and overturned. She said she also has hope that Tennessee Gas will not be able to meet a Nov. 1 deadline it has cited for finishing the project to supply natural gas to customers.
"I hope they drop that portion," she said, adding that the entire expansion project should be moved to Connecticut.
In his decision, Agostini, while upholding the company's right to access the site for the project, added, "Despite the pre-emption of Article 97, the [FERC] certificate does not give Tennessee an unrestrained right to ignore the commonwealth. Instead, the certificate expressly requires Tennessee to make a good faith, reasonable effort to 'cooperate with state and local agencies regarding the location of pipeline facilities, environmental mitigation measures, and construction procedures."
During the April hearing before Agostini at Berkshire Superior Court, attorney James Messenger, representing Tennessee Gas, laid out their arguments on the injunction and eminent domain requests. He 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 FERC 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 argued, "every court has granted immediate possession" of the land to the company. He added that "all the arguments [being made by the state] have been tried before and rejected," saying that "they are doing everything they can to delay a federally anticipated project."
Representing the state at the hearing, Assistant Attorney General Matthew Ireland argued 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, Ireland said, adding the Massachusetts provision is unique.
And he 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.
Contact Jim Therrien at 413-496-6247.
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