Legal logjam delays Tennessee Gas Pipeline project into 2017


Whatever happened to the Tennessee Gas Pipeline Co.'s Connecticut Expansion Project, a 14-mile series of loops and spurs that would have cut a 2.3-mile swath through the heart of Otis State Forest in Sandisfield?

Turns out it's mired in a legal thicket of appeals and counter-lawsuits involving one state agency and two federal courts that appears to block any tree-clearing project through the woodlands until next spring, if then. Tennessee Gas had hoped to put the extensions into service by next month to increase natural gas supplies for three Connecticut distributors.

An order issued Tuesday in federal court ensures the logjam will persist into early next year.

The Federal Energy Regulatory Commission last March approved the pipeline extensions in Bethlehem, N.Y., near Albany, four miles in Sandisfield, including the state forest pathway, and a short stretch in Agawam extending over the Connecticut border.

During the summer, members of the Pipe Line Awareness Network for the Northeast, working with other environmental organizations and Sandisfield landowners, appealed a clean-water certification by the state's Department of Environmental Protection issued in June that could have jump-started the Kinder Morgan affiliate's $86 million project.

Network President Kathryn Eiseman then notified FERC of the appeal.

Meanwhile, Berkshire Superior Court Judge John Agostini sided with the pipeline company by ruling that the U.S. Natural Gas Act first adopted in 1938 overrides a provision of the Massachusetts Constitution that would have shielded state land under conservation. The forest land had been purchased by the state for $5.6 million a decade ago.

Agostini's ruling is on hold as he reviews demands by Sandisfield citizens seeking compensation for land to be taken by Tennessee Gas by eminent domain, as well as any damage to the small town's bridges and roadways if the pipeline extension is built.

But the appeal to the state filed by Eiseman and her allies contended that the Clean Water certificate failed to address the plan by Tennessee Gas to cross waterways and wetlands along an existing pipeline route through the state forest and to drain Spectacle Pond within the forest.

Now, the legal battle revolves around an apparent clash between state and federal rights.

After the state DEP set a hearing on the appeal for Jan. 18, Tennessee Gas sued the agency and the group of environmental leaders and citizens that filed the appeal, arguing that the U.S. District Court in Springfield should override the state appeal in favor of a hearing by a higher court — the U.S. Court of Appeals for the First Circuit in Boston.

Eiseman's appeal argued that any federal court action has to await the outcome of the state DEP's hearing early next year, a timeframe that did not sit well with the pipeline company's original project schedule.

The latest twist and turn includes a federal court decision to put on hold the Tennessee Gas suit against the state and the residents led by Eiseman, Jane Winn's Berkshire Environmental Action Team and Rosemary Wessel of No Fracked Gas in Mass.

The District Court in Springfield based this decision on the fact that the citizens have a second appeal pending at the Court of Appeals in Boston.

"We filed the federal appeal as a precautionary measure," Eiseman said, "because we don't want a court to rule that we didn't file a timely appeal in the right venue. But the cases we cite in our filings show that a federal court appeal is premature."

"We have all become acquainted with the fact that the Federal Energy Regulatory Commission has given pipeline companies an unreasonable amount of power under the Natural Gas Act," she said. "But Kinder Morgan is trying to push the limits even further, seeking to cut short one of the few decision-making processes that states retain in the interstate natural gas pipeline regulatory process."

Eiseman acknowledged that "while there is no dispute that at some point the federal appeals court will have jurisdiction to review the [state] DEP's final decision, we went to the higher court to ask that it affirm our right to see the state process through to completion."

On Tuesday, the U.S. First Circuit Court of Appeals issued an order declining to rule on the jurisdictional question at this time, instead awaiting further briefings.

This means that the two appeals are proceeding simultaneously, with hearings scheduled at both DEP and the federal appeals court in January 2017.

Contact Clarence Fanto at 413-637-2551.


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