Tennessee Gas Pipeline meeting raises legal, technical consideration for municipal officials

Last modified: Wednesday, May 27, 2015

Although less heated than many forums about the proposed Tennessee Gas Pipeline project that would cross western Massachusetts, a two-hour meeting Tuesday hosted by the Franklin Regional Council of Governments raised several legal and technical considerations for many of the roughly 60 municipal officials and others attending.

Jeffrey Bernstein of Newton-based BCK Law told the gathering at Greenfield Community College that although the Federal Energy Regulatory Commission has federal authority over the regulatory process for the 430-mile Northeast Energy Direct pipeline, it does try to “harmonize its decision” with state, regional and local boards, which in some cases can go farther than federal requirements.

“Basically, the time prior to the notice of intent (setting the scoping process for the coming environmental impact statement) is the time to do your homework if you’re concerned about the pipeline’s specific impact on your community,” Bernstein told the group. The state attorney general, Energy Facilities Siting Council and Executive Office of Energy and Environmental Affairs will intervene in the proceedings, and he encouraged local communities to intervene as well, either individually or as part of a consortium such as the one being led by the Franklin Regional COG.

The $5 billion natural gas pipeline would pass through Plainfield in Hampshire County and eight towns in Franklin County, including Deerfield.

Some communities choose to enter into community host agreements, spelling out environmental or construction conditions “without necessarily taking a position for or against the project. They take the view ... that if the project comes, they want to try as hard as they can to sensitize an applicant to what’s going to happen.”

Bernstein said that in nearly all cases, the Federal Energy Regulatory Commission granted pipeline companies the certificates they have applied for, “and if you ask for reasonable protections, and there are a great number of communities and individuals asking for them ... that’s something FERC will pay some attention to. The best advice I can give is to speak not only as individuals but also as communities and regional entities and get involved as soon as you can.”

But he added, “This company has invested so much. They’re not going to pull out tomorrow.”

Asked why the project proponents would bind themselves voluntarily with a host community agreement, Bernstein said, “From their perspective, we think as part of our planning and environmental permitting process, we’ve gone through a very rigorous review collaboratively with the community is something that’s encouraged, and we’ve identified those conditions, at the end of the day, it’s a plus from FERC’s perspective. It also can shorten the process because at least the environmental issues are out on the table and there’s a process for identifying them.”

Bernstein advised towns to approach Tennessee Gas Pipeline earlier, rather than later, in the process, about working out enforceable agreements about how the land will be left after construction, what provisions there will be for local inspections by a clerk of the works representing the community, and other issues. But he added that it cannot be done before a clear understanding of specific details about the project’s route and facilities in the community.

“Sometimes early on, you don’t know what all the impacts are,” he said. “Certainly, once that scoping process happens, which we’re told will be this fall, you’d better line up as many dots as you can.”

Asked specifically about the ultimate authority of the state’s Article 97 provision — requiring a two-thirds legislative vote for taking any protected land for the project — Bernstein said he is not certain if it has ever faced litigation.

But he added, “If you can’t get the Article 97 approvals, and the pipeline gets its certificate and says, ‘We trump that, we pre-empt that,’ at the end of the day, I don’t know what a federal court, I wouldn’t bet on the outcome of that, that a federal court is going to choose Article 97 of the Massachusetts Constitution over this very broad federal statute.”

Marco Boscardin of Amherst-based Boscardin Consulting Engineers, asked by a Northfield resident about the implications of living possibly less than three-quarters of a mile from the compressor station planned for the project, said, “You’re going to be living next to an airport.”

Tuesday’s meeting, organized by the Berkshire Regional Planning Commission, was funded as part of a grant from the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration.


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