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Opponents Hopeful State Appeals Decision Granting Pipeline Co. Access To Otis Forest

Pipeline opponents rallied outside Berkshire Superior Court in Pittsfield, Massachusetts for a hearing on the land access in April.
Jim Levulis
Pipeline opponents rallied outside Berkshire Superior Court in Pittsfield, Massachusetts for a hearing on the land access in April.

A Berkshire Superior Court judge this week granted Tennessee Gas Pipeline permission to access protected land in Massachusetts for a federally approved natural gas pipeline expansion.Judge John Agostini finds The Natural Gas Act allows Tennessee Gas to proceed with its Connecticut Expansion Project in Otis State Forest, but has stayed that order until July 29. In April, the Massachusetts Attorney General’s Office argued that state lawmakers should be given time to act on legislation allowing access to the constitutionally-protected land. It was filed by Representative Garrett Bradley of Hingham, 20 miles south of Boston, in 2015. Representative Smitty Pignatelli of Lenox has decried that bill and the expansion project proposed by Tennessee Gas’ parent company Kinder Morgan.

“If the state feels the need to appeal this decision, which I hope they will, I think the Legislature should be put on record stating their support or opposition to Article 97,” Pignatelli said. “It would help diminish the Kinder Morgan argument that the Legislature has ignored them. I don’t believe we’ve done that, but they feel that way. So it’s time for us to weigh in and do our job.”

In a statement, the Attorney General’s Office says it is “disappointed in Judge Agostini’s decision to grant Kinder Morgan’s request for a preliminary injunction” but pleased “that the judge stayed his order until July 29.” The statement says the Legislature has a critical role in determining the status of conservation land. A spokesperson says the office is reviewing the decision and considering its options.

On the other side, Kinder Morgan says it is “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.” The company is continuing to review the decision and considering its options.

The Massachusetts Audubon Society was key in helping the state acquire a portion of Otis State Forest about a decade ago and had been granted amicus brief status to file documents in support of the Attorney General. Director of Public Policy and Government Relations Jack Clarke says the group is consulting its own attorneys on the next steps and encouraging the AG’s office to appeal the decision.

“Mass Audubon has always seen the plant and animal species including old growth forests and the ponds as one of the most biologically rich, diverse and valuable pieces of land in the commonwealth,” said Clarke.

Clarke and Mass Audubon staff were planning to tour the forest Thursday. Leigh Youngblood of the Mount Grace Land Conservation Trust was among the project’s opponents including the group Sandisfield Taxpayers Opposing the Pipeline, who rallied outside and packed the Pittsfield courthouse for April’s hearing. Youngblood expressed concern that the court’s ruling could be precedent setting for Kinder Morgan’s larger Northeast Energy Direct project, which has since been suspended.

“In FERC’s own policies, PL-99-3, it says that the benefit of the pipeline has to be proportionate to the amount of eminent domain,” Youngblood said. “The one difference between NED and the Connecticut Expansion is that this challenge happened after the certificate was already issued. The Legislature did not make their position known during the FERC application so the FERC certificate doesn’t really address that issue of proportionality. Because in Massachusetts, 50 percent of the pipeline length in Otis [State Forest] was on protected land so that issue could have been raised, but I don’t believe it was.”

Youngblood isn’t discouraged by the court’s decision in regards to other projects, saying the Massachusetts Legislature could use Article 97 against the Northeast Energy Direct pipeline, were it to resurface, during the federal application process. She says the Connecticut Expansion Project, which also includes loops in New York and Connecticut and will service Connecticut utilities, caught some by surprise.

“The Connecticut Expansion is the first interstate pipeline that Massachusetts has encountered in many years,” she said. “So it was a learning experience. I was tracking it from the beginning, and I think a lot of people weren’t, because let’s face it, it’s a small town in the western part of the state and the NED got a lot more attention because it crossed 30 towns all the way to the North Shore.”

The legislation that would allow Tennessee Gas to access the protected land was placed in study following a November hearing. Pignatelli doesn’t believe the two-thirds vote needed to break Article 97 would be reached if taken up before the end of the current legislative session.

“We can pull it out of study at any time and take a position on it,” Pignatelli said. “Kinder Morgan has not even been forthright with the requested information that we asked for at the November hearing. So let’s stand up, take a vote and let the chips fall where they may in a higher court from there.”

Kinder Morgan does not yet have other necessary permits to start tree cutting in Otis State Forest.

Jim is WAMC’s Assistant News Director and hosts WAMC's flagship news programs: Midday Magazine, Northeast Report and Northeast Report Late Edition. Email: jlevulis@wamc.org
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