Both sides weigh appeal in Berkshire pipeline case

  • Anti-pipeline demonstrators outside Berkshire County Superior Court building on April 15. Recorder FILE PHOTO/Richie Davis

Recorder Staff
Published: 5/10/2016 7:38:48 PM

Both sides in Monday’s court decision negating a state constitutional protection against natural gas pipelines said Tuesday they’re weighing appeals.

The decision in Berkshire Superior Court ​would allow Tennessee Gas Pipeline Co. to access a proposed pipeline right of way through 2.3 miles of Otis State Forest in Sandisfield to build its Connecticut Expansion project.

Yet Judge John A. Agostini postponed his order from taking effect to give the Legislature a chance to act on bill to permit the land, protected under Article 97, to be used for the project.

In his decision, Agostini ruled that the authority of the Federal Energy Regulatory Commission in its March 11 approval of the pipeline expansion supersedes that of the constitutional provision designed to safeguard publicly conserved land.

“The need for paramount federal authority here is compelling,” wrote Agostini in his 21-page decision. “An individual state would be powerless to authorize and implement a coherent and comprehensive gas production and distribution system throughout the United States. Given the disparate interests of each state, particularly those producing and those consuming the gas products, only a central authority with plenary power and the national interests at stake could effectively install and maintain such a system. The Natural Gas Act was designed ... to produce a harmonious and comprehensive regulation of the industry. Neither state nor federal regulatory body was to encroach upon the jurisdiction of the other.

“Congress intended to pre-empt this area and left no room in this field for a state to incorporate its rules and laws,” he added. “In fact, permitting the states to exercise the unilateral ability to interfere with federal policy would eviscerate” the National Gas Act.

And regardless of Article 97’s standing as Constitutional amendment, Agostini noted, the law is “littered with numerous state constitutional provisions felled by federal pre-emptions.”

TGP, which had originally sought the court decision by April 30 so that it could begin tree cutting by the end of May along the path of the 13-mile pipeline project and have the project operating by Nov. 1, is also weighing its options, according to a written company statement.

“We are 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 … (FERC). We are continuing to review the decision and will consider our options, and we look forward to working cooperatively with stakeholders involved in this project.”

The Article 97 aspect of the case has been watched closely by land conservation and environmental advocates as well as opponents of TGP’s proposed Northeast Energy Direct pipeline project, which had been planned to cross eight Franklin County towns on its path from Wright, N.Y. to Dracut, north of Lowell. Work on the NED project has been suspended because of insufficient customer demand.

The state Attorney General’s Office, which had argued that there would be irreparable harm to the state sovereignty if the court struck down the provision without having to, issued a written statement saying it was “reviewing the decision and considering our options moving forward.

“We are disappointed in Judge Agostini’s decision to grant Kinder Morgan’s request for a preliminary injunction. We are pleased, however, that the judge stayed his order until July 29, recognizing the critical role of our state Legislature in determining the status of conservation land and allowing it the time to act,” wrote the AG, which had argued that a decision on a preliminary injunction would be “premature” until the end of the legislative session when a measure to remove Article 97 protection from the state forest parcel might be acted on.

The Legislature’s Committee on State Administration and Regulatory Oversight tabled the legislation the day before the company’s filing of the suit against the state.

Rep. Peter Kocot, D-Northampton, who chairs the committee, said the committee had tabled the bill until the company produced information it had repeatedly failed to present about the details of compensation packages that had been offered to the Town of Sandisfield and to the state Department of Conservation and Recreation’s Conservation Trust, along with information from the U.S. Wildlife Service and Army Corps of Engineers about the impact on wetland and wildlife habitat.

Without that information, Kocot said, “It’s impossible to make a recommendation. We continue to await receipt of the additional information,” after which the House and Senate could decide on whether to pass the Article 97 measure by a required two-thirds majority in both houses.

Yet if the judge is leaving time for the Legislature to take definitive action on the measure, even while he rules that Article 97 is pre-empted under federal law, Rep. Stephen Kulik, D-Worthington, said “it’s worth considering” whether to vote on the Article 97 legislation, if only as a symbolic act, if the case is appealed — as Kulik and Agostini seem to expect it will.

“I’m disappointed by the decision, though I’m not surprised by it,” said Kulik, a strong opponent of the Connecticut Expansion and NED projects.

Kathryn Eiseman, president of Pipe Line Awareness Network for the Northeast, said, “I certainly hope the attorney general’s office will appeal on behalf of the commonwealth, because I don’t think the judge should have reached the pre-emption issue.”

Because the judge could have let the Article 97 issue play out in the Legislature without shooting it down on federal pre-emption grounds, or by seeing whether the state Department of Environmental Protection grants a needed 401 federal water quality certificate, “I thought it was a very odd way to split the baby,” she said.

Agostini, who required that TGP post a $500,000 bond to cover compensation to the state and affected Sandisfield property owners, wrote, that the company has “satisfied all requirements of the Natural Gas Act. … The failure of Tennessee to obtain all of the permits or to satisfy all of the construction conditions is not grounds to prevent the requested relief. It is axiomatic that the project cannot commence without complying with the conditions in the certificate. However, this does not prevent the exercise of eminent domain power and preliminary relief.”


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