Attorney general to file in pipeline suit

Hearing set for Tuesday in Pittsfield court

For the Gazette
Published: 3/24/2016 2:34:33 AM

Tennessee Gas Pipeline Co. is pressing ahead to begin cutting trees for its Connecticut Expansion Project after arguing in a lawsuit filed in Berkshire Superior Court that it does not need state permission to build across Otis State Forest in Sandisfield.

The company on March 11 received Federal Energy Regulatory Commission approval for its 13.42-mile-long loop through two miles of state-owned land protected from development by Article 97 of the Massachusetts Constitution. And on Tuesday it asked to proceed with tree felling to beat a March 31 deadline set by the U.S. Fish and Wildlife Service and keep its project on schedule.

“Tennessee will fell trees using hand-held equipment only, will not use mechanized equipment to accomplish this activity, and will use equipment that will not rut soil or cause damage to root systems,” the company wrote federal regulators, and it “will leave felled trees in place until it requests and receives notice to proceed with construction.”

The suit by Tennessee Gas Pipeline, which has also called on Fish and Wildlife to extend the tree-clearing deadline to May 1, is seen as a precedent for the company to work around the Article 97 conservation land provision on its Northeast Energy Direct pipeline project through Plainfield in Hampshire County and eight Franklin County towns.

The state attorney general’s office plans to file its response to the suit Tuesday to defend the constitutional provision, according to a spokesman. A hearing is set for 2 p.m. March 31 in the Pittsfield court.

Meanwhile, a group of Sandisfield property owners, who on March 17 filed with the federal commission to halt its approval of the Connecticut Expansion project in the southern Berkshires, has formally notified the commission that it plans to sue that agency in U.S. District Court for allegedly violating the federal Clean Water Act by approving the Connecticut pipeline looping project.

Until required certification by the Massachusetts Department of Environmental Protection is approved or waived, the federal Clean Water Act expressly prohibits the commission from issuing a certificate, said Alexander English, a lawyer for Sandisfield Taxpayers Opposing the Pipeline.

“It is a violation of (the commission’s) own mandate, to obey applicable federal and state permitting and laws,” to grant its certificate for the project before a Section 401 water-quality permit has been granted, said the notice of intent to sue.

Tennessee Gas responded Tuesday by saying opponents have not shown “irreparable harm” if the work proceeds and that regulators “thoroughly analyzed the environmental impacts … and found no significant impact on the environment, with mitigation measures implemented.” On the contrary, the company adds, it would be harmed by a delay, because its Connecticut customers are relying on a completion date of Nov. 1 for the pipeline expansion to meet winter season demands.

“What’s going on in this is pretty clear,” said Richard Hubbard, executive director of Franklin Land Trust, which is part of a state coalition that is looking into joining legal action to stop the project because of the precedents it would set for the Northeast Energy Direct pipeline across 64 miles in Massachusetts. Tennessee Gas parent “Kinder Morgan is trying to hammer a spike into Article 97. It’s just incredible how heavy-handed they are and have been from day one.”

The company’s Berkshire Superior Court lawsuit was filed one day after the Massachusetts Joint Legislative Committee on State Administration and Regulatory Oversight voted to set aside legislation filed by Rep. Garrett Bradley, D-Hingham, calling for releasing the Otis State Forest land from Article 97 protection of conservation property. A two-thirds vote by both legislative branches would have been required to release the property from the provision.

The pipeline opposition group No Fracked Gas in Mass. has issued an “urgent action needed” alert to its members, with a photo of tree-cutting that has taken place in New York state for construction of the Constitution Pipeline project.

The group called for project opponents to call on  the federal commission to stop the project from proceeding because there has not been water quality certification from Massachusetts DEP.

Leigh Youngblood, executive of Mount Grace Land Conservation Trust, said “It’s a great concern. There’s never been anything quite like this.”

Although two state-owned conservation parcels are at stake, the action could affect an estimated 150 to 200 parcels of protected land along the Northeast Energy Direct route, she said.

U.S. Rep. Richard E. Neal, D-Mass., whose district includes Sandisfield as well as many of the Berkshire, Franklin and Hampshire county towns along the proposed path of the Northeast Energy Direct project, said in a written statement, “I am a strong supporter of a clean energy future, but not at the expense of our protected state conservation lands. In my opinion, support of Article 97 must be the place to start any conversation about a new natural gas pipeline in western Massachusetts. This process needs to be open and transparent and take into consideration the views of local residents.”


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