Forest pipeline opponents hang tough

Final approval may come in court Monday

Posted
A green light from Berkshire Superior Court could flash on Monday for the 13-mile Tennessee Gas Co. pipeline extension that would cut through two miles of Otis State Forest in Sandisfield.

The $93 million Connecticut Expansion Project first proposed by parent company Kinder Morgan in August 2014 has jumped through multiple legal hoops en route to what may be its final courtroom approval amid continuing strong opposition from environmental groups and some residents of Sandisfield.

The project aimed at bolstering natural gas supplies for three Connecticut distributors was approved by federal regulators last March and also has won state certifications.

Since the forest is under state protection, the legal confrontation pitted several Massachusetts agencies against the U.S. government's 1938 Natural Gas Act designed to foster interstate shipment of supplies.

Tennessee Gas had filed a lawsuit against the state last March in order to acquire the easement through the 3,800-acre state forest, which includes the 62-acre Lower Spectacle Pond.

In May, Berkshire Superior Court Judge John Agostini granted temporary construction easements to the company and a permanent, six-acre pipeline easement through Otis State Forest by eminent domain. He argued that the federal law overrides the protection of the state constitution.

The company had gone to court for the eminent domain land-taking because under Article 97 of the Massachusetts constitution, state lawmakers must approve any easements through conserved land. But the Legislature failed to vote on the pipeline project.

Agostini's ruling in favor of Tennessee Gas was put on hold as the company's lawsuit was challenged by the Attorney General's Office.

The heavyweight logjam was cleared on Dec. 29 when Attorney General Maura Healey announced a consent-decree settlement between the state and the pipeline company requiring Kinder Morgan to pay nearly $1.3 million in total compensation for the state forest land it had taken.

At Monday's Superior Court hearing, Agostini may give the necessary final approval to the settlement.

The agreement requires the company to pay compensation for its pathway through the state-owned land along an existing underground pipeline route and for post-construction cleanup and restoration costs.

"This settlement sets a very high bar for the value of conservation land taken by eminent domain in Massachusetts," Healey said.

Tennessee Gas is aiming to build the pipeline this year — following springtime tree-cutting — and put it into service on Nov. 1.

With the help of MassAudubon, the state acquired preservation rights for much of the state forest in 2007 for $5.2 million. At the time, it was said to be among the most expensive land conservation agreements in state history.

In addition to four miles of new pipeline in Sandisfield (including two in the state forest), the 13.4-mile project includes several loops and spurs in Bethlehem, N.Y., and from Agawam into northern Hartford County, Conn.

"For more than 30 years, Tennessee Gas has safely and responsibly operated two underground natural gas pipelines that traverse a section of Otis State Forest," said Richard Wheatley, the public information director for Kinder Morgan.

Several other environmental groups are continuing to fight the pipeline, targeting the tree-cutting that would precede construction.

Pipeline Awareness Network for the Northeast (PLAN-NE) filed objections to the Federal Energy Regulatory Commission on Monday, said the group's president, Kathryn Eiseman of Cummington.

She stated that more than 100 people and organizations have filed comments to the commission opposing the tree-cutting through Otis State Forest.

"Felling trees and leaving them in place, as planned by Tennessee Gas Pipeline, would constitute filling wetlands under state law, a violation of the Clean Water Act," Eiseman told The Eagle.

Among other hurdles she listed that remain to be resolved:

- PLAN-NE's appeal of the required water quality certification awarded to the project is still pending at the state Department of Environmental Protection.

- Consultations with two Native American tribes over 73 ceremonial landscape features along the right-of-way in Sandisfield remain to be completed, since one-third of the features could be affected by construction.

- The company still has not certified the vernal pools in the path of the pipeline construction as ordered by the Sandisfield Conservation Commission.

- A request for another hearing at the Federal Energy Regulatory Commission (FERC) by STOP (Sandisfield Taxpayers Opposed to the Pipeline) was still pending as of Thursday.

Because of a commission member's retirement Friday, FERC will lack a quorum of voting members for several weeks to a few months, according to published reports.

Jane Winn of the Pittsfield-based Berkshire Environmental Action Team tried to deliver a letter to Judge Agostini on Jan. 25 criticizing the settlement between the state and the company. The letter, also signed by Eiseman, pointed out "grave concerns" over the amount of money the state would receive in exchange for the company's right-of-way.

But court officials turned them away since they were not a party to the Tennessee Gas lawsuit against the state.

The letter was then e-mailed to the state Attorney General's Office, Department of Conservation and Recreation Commissioner Leo Roy and to Energy and Environmental Affairs Secretary Matthew Beaton.

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

By the numbers . . .

Here's a breakdown of what Kinder Morgan's Tennessee Gas Pipeline Co. owes the state of Massachusetts as compensation for the land it is taking by eminent domain through Otis State Forest in Sandisfield for its Connecticut Expansion Project:

- $300,000 to the Department of Conservation and Recreation (DCR) so the state can acquire additional conservation land in the vicinity of the pipeline project.

- $300,000 to DCR to clean up and improve recreational opportunities in the state forest.

- $40,000 for the fair market value of pipeline easements.

- $640,000 for post-construction environmental monitoring and other mitigation.

Source: Consent decree settlement between the company and the state of Massachusetts.

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