Judge delays Kinder Morgan bid to start cutting trees for pipeline spur

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PITTSFIELD — A motion by Kinder Morgan to allow tree-cutting to begin immediately on state-shielded land in Sandisfield has hit a legal roadblock in Berkshire Superior Court.

Judge John Agostini has ruled in favor of Attorney General Maura Healey's emergency motion to delay by at least two weeks the company's drive for a preliminary injunction to condemn and seize by eminent domain more than two miles of woodlands in Otis State Forest.

Tennessee Gas Pipeline Co's Connecticut Expansion Project comprises three pipeline spurs, including a four-mile swath through Sandisfield. The other loops are in eastern New York and in Agawam.

Parent company Kinder Morgan wanted to begin non-mechanized tree cutting immediately in the forest adjacent to an existing pipeline. Federal environmental rules require such work to end by May 1 if the U.S. Fish and Wildlife Service grants an exemption to its normal deadline of March 31. Tennessee Gas is trying to meet a Nov. 1 deadline to put the pipeline into service to supply three Connecticut utilities that have agreed to purchase the gas ahead of next winter's heating season.

The company argued that approval by federal regulators on March 11 of the $87 million, 13-mile project allows easements along the Sandisfield portion of the route to be taken by eminent domain even without approval by state lawmakers. The state forest is protected by Article 97 of the Massachusetts Constitution and the legislature has declined to seek the required two-thirds vote approving an exemption.

Tennessee Gas had listed the state Department of Conservation and Recreation and its Commissioner Leo P. Roy among the defendants in its court action.

In his written ruling issued late Tuesday, Agostini cancelled a formal hearing on the injunction set for Thursday afternoon. Instead, a scheduling conference will be held to determine the timeline for resolving the case.

Healey's motion to delay the hearing was based on the Federal Energy and Regulatory Commission's (FERC) recent order seeking more information from Tennessee Gas in light of the state's constitutional protection of the land.

"It is obvious that this litigation presents very complex and significant issues," Agostini wrote, citing overlapping federal, state and regulatory laws.

With some documents still not received, the judge argued that the court "has a very limited understanding of the nature of the dispute and the various issues that need to be resolved." He also noted that summonses have not been served on all the parties to the dispute.

"Having a preliminary injunction hearing on such short notice, particularly with all the outstanding issues, is neither feasible nor wise," he ruled, adding that "I fully appreciate that this matter must be addressed with alacrity; however, a hurried approach under these circumstances would not be consistent with the court's responsibility to provide all parties with a fair hearing and a thoughtful decision."

"I fully expect that the date for the preliminary injunction hearing will be rescheduled within the next two weeks," Agostini concluded.

He also asked both sides in the dispute to propose a new date for the formal injunction hearing and to inform the court of needed research on the dispute, whether a trial would be required on legal issues, the significance of FERC's request for more information, and identification of all the issues to be decided by the court.

Agostini's ruling, a setback for Kinder Morgan and a victory, if temporary, for opposition groups, follows a fast-moving series of legal punches and counterpunches.

Last Friday, federal regulators demanded more information from the pipeline company about its effort to override Massachusetts law by beginning work in the state forest, which includes Lower Spectacle Pond and old-growth woodlands acquired by Massachusetts for $5.2 million in 2007 to protect it from development.

The effect of FERC's yellow light tossed the issue to Berkshire Superior Court for the hearing that had been slated for Thursday afternoon. But on Monday, Healey's office filed for a delay. Assistant Attorney General Matthew Ireland argued that "a short extension and hearing continuance is in the public and this court's interest because it will allow time for complex issues involving federalism and the Massachusetts Constitution to be fully briefed for the court."

The company fired back on Tuesday, insisting that under the U.S. Natural Gas Act, state and federal courts in Massachusetts and elsewhere have ruled that pipelines approved by federal regulators override state law, including state constitutions, when there's a conflict.

Tennessee Gas attorneys also argued that FERC's request for more information to resolve the federal-state confrontation over the tree-cutting issue increased the need for an immediate Berkshire Superior Court hearing to achieve a resolution allowing the project to go forward.

The company doubled down on the need for "immediate condemnation and entry" to the forest so tree-cutting can be completed in time for a June 1 start of construction to meet the Nov. 1 completion date.

"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."

But hours later, Agostini supported the attorney general's move for a postponement, ruling that the court needed more information and time to explore the complex issues raised by the federal-state legal confrontation.

Contact Clarence Fanto at 413-637-2551.


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