Arguments over whether Tennessee Gas Pipeline Company can start cutting trees on constitutionally protected land in Massachusetts were heard in court Friday.Members of the state attorney general’s office and representatives from Tennessee Gas, a subsidiary of Kinder Morgan, laid out their stances in a jam-packed Berkshire Superior courtroom Friday afternoon. The company says it needs to access roughly two miles of Otis State Forest near the small Berkshire County town of Sandisfield to start work on the $86 million Connecticut Expansion Project. That land is protected under Article 97 of the Massachusetts Constitution. Even with that protection, the Federal Energy Regulatory Commission approved a certificate for the project in March. Days later the company filed an injunction in Berkshire Superior Court seeking immediate access to the state forest. Matthew Ireland from the attorney general’s office says Massachusetts’ citizens uniquely granted the Legislature the authority to protect the lands.
“Not through the courts in terms of conservation restrictions that has terms that the courts would wrangle with in terms of undoing,” Ireland said. “No, we want the Legislature, a separate branch of the government, to only be allowed to make this determination and only through a two-thirds vote. I think this gets to the heart of how the commonwealth views itself a sovereign.”
Representing Tennessee Gas, Jim Messenger argues the company needs to access the land to get further permits necessary to complete the project, which he says the federal government has determined is needed. Judge John Agostini questioned the state’s argument that it stands to stop a federally approved project.
“The supremacy clause has always been the glue that has kept the states together and here you are chipping away at it and saying ‘Well, we can do it,’” said Agostini.
Messenger later touched on that point.
“Common sense tells you that the commonwealth’s position can’t be right,” Messenger said. “That they can simply take a position that we can stop this project or we get to decide how it’s routed even though there is an agency that has exclusive jurisdiction to decide how to route it.”
Legislation to allow the company easements in Otis State Forest, an area where two pipelines already run, was filed by a Boston-area state lawmaker in 2015. It’s been decried by Berkshire area lawmakers. A two-thirds vote in the Legislature is needed to lift the protection. The bill has been placed in a study committee. With the legislative session running into July, Ireland says lawmakers should be allowed to do their job.
“If they receive the two-thirds roll call vote approval and the easement is authorized under Article 97 by the Legislature this is moot,” Ireland said. “Preemption question goes away. There is no conflict. That’s pretty much the only point to make. The court should race ahead to reach on the merits is a very important question which could be mooted in a very short period of time.”
Messenger says FERC pointed out, following an 18-month review, that the company had met all state requirements through its federal application process. He says the company will be financially harmed by not having the project, which will supply Connecticut utilities, in service by November 1. Messenger says the company needs to access the land by June and adds that the state is simply trying to delay the project.
“Courts have recognized that if a state tries to interfere with condemnation after a project’s been approved the federal system of regulating interstate could not function,” said Messenger.
After two hours, Judge Agostini promised he would reach a decision as soon as possible, but warned earlier that the company would be bogged down for a long period of time following appeals or stays.
“Given an issue of this nature which has some ramification the SJC [Supreme Judicial Court] would probably issue a stay,” Agostini said. “They would be very interested in this issue. They would set a briefing schedule. This doesn’t end with this court.”
Pipeline opponents who gathered outside the courthouse before the hearing expressed concern that the case could be precedent-setting for the company’s larger Northeast Energy Direct pipeline.
