AG defends Article 97 in Berkshire County pipeline case

Recorder Staff
Published: 4/11/2016 10:56:52 PM

The state Attorney General’s office on Monday formally defended the state’s constitutional amendment protecting state-owned conservation land as the core of its opposition to Tennessee Gas Pipeline Co.’s Berkshire Superior Court case to allow condemnation of state forest land for its Connecticut Expansion Project.

A 1 p.m. hearing is scheduled for Friday in the Pittsfield court on TGP’s lawsuit which sues the state, its Department of Conservation and Recreation and the department’s commissioner

In its consolidated opposition, the attorney general writes, “This Court should deny Tennessee’s motions because they are premature and unripe” and since underlying permitting processes by the Federal Energy Regulatory Commission and other agencies are not complete.

It notes that FERC, which on March 11 certified the 13.42-mile-long, three-section project looping existing natural gas pipeline, including a 36-inch-diameter cut across nearly four miles of state forest land, has not yet authorized the company to begin construction, and is unlikely to do so in time for completion before federal restrictions to protect seasonal nesting birds and other species.

“In all likelihood, FERC will not authorize Tennessee to clear trees and begin construction until October 2016,” says the filing,

Critically, the attorney general argues, the company’s claim to build the project on state-owned land in Sandisfield is “without merit,” because Article 97 of the Massachusetts Constitution prohibits the taking of state-owned conservation land without a two-thirds vote of the Legislature. Proposed legislation that, if approved, allows the taking of the property in Otis State Forest was delayed by the Legislature’s Committee on State Administration and Regulatory Oversight the day before TGP’s lawsuit was filed.

Monday’s filing asserts that Article 97 — which is likely to be a key issue in the fight over the proposed Northeast Energy Direct project, which would cross eight Franklin County towns — is not pre-empted by the National Gas Act, as TGP has asserted.

The company, which now has its NED project before FRC for an environmental review, has said it needs to begin work on the project this spring to meet its contract obligation with customers to have its pipeline in service this fall.

The filings says the “unique constitutional provision implicates the structure of Massachusetts state government and separation of powers between the legislative, executive and judicial branches” and “governs the Commonwealth’s control and conservation of its sovereign territory.”

The filing says the constitutional amendment, ratified by a 1972 vote of Massachusetts citizens, is the “constitutional embodiment of the public trust doctrine,” with roots dating back to the Colonial Ordinances of the 1640s. The doctrine maintains that lands held in trust must have the intention of the grantor maintained.

“Article 97 governs a critical component of the Commonwealth’s sovereignty. The Supreme Court has held repeatedly that a State has ‘an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.’”

The AG argues, “Whether a FERC Certificate pre-empts a state constitutional provision like Article 97 is, to our knowledge, a question of first impression raising important issues about state sovereignty and the balance of federal and state power over a state’s right to protect and control its sovereign territory. … A state has vital sovereign interests in ensuring that “the forests on its mountains ... should not be further destroyed or threatened by the act of persons beyond its control.”

The state in 2007 spent $5.2 million in taxpayer dollars to acquire 900 acres for Otis State Forest, which the legal filing says “was among the most significant and costly conservation land purchases in the Commonwealth’s history,” and includes 15 acres of hemlock old-growth forest — “one of the largest old-growth stands known in the Commonwealth and a rare resource containing trees more than 400 years old.”

The pipeline project would impact more than 20 acres of the conservation land, including permanent impacts to six acres of new pipeline right-of-way, the AG’s filing says, with more than 1 million gallons of water to be withdrawn from Lower Spectacle Pond for pressure-testing the pipeline — to be discharged to an adjacent vegetated upland to flow back into Spectacle Pond, but permanently lowering the Pond’s depth. The project would also impact wildlife and rare plant and endangered animal species including wood turtles and umber shadowdragon dragonflies, the northern long-eared bat, it says.

The attorney general argues that TGP has not provided requested information to the state Legislative committee overseeing Article 97 about wetland impacts and “mitigation agreements” with the state and town, and it has not responded to FERC information requests, among which was a confirmation request that it would not cut trees in Otis State Forest before seasonal restrictions.

TGP has not yet received a request from the U.S. Fish and Wildlife Service for an extension to a March 31 deadline for tree cutting to protect nesting habitat, the AG noted, and it has not received a necessary Section 401 Water Quality Certificate from the state Department of Environmental Protection, under provisions of the Federal Water Quality Act.

“DEP is concerned with potential impacts to wetlands and waterbodies from leaving felled trees in place until next fall,” the AG filing says.

Sandisfield Taxpayers Opposing the Pipeline has indicated it plans to file with FERC for a rehearing on its certificate, on grounds that the March 11 certificate is invalid for not complying with the National Environmental Policy Act.

“Tennessee has no immediate need for a preliminary injunction,” The attorney general argues, “For the next several months at least, Tennessee is not in a position to move forward with project construction, including tree cutting, in Otis State Forest.”

But if TGP will not suffer harm by being denied the preliminary injunction it seeks, the AG argues, the state would suffer “irreparable harm,” since the required tree-clearing would cause impacts lasting 20 to 50 years on the regrowth of forested areas to pre-construction conditions, along with permanent impact to 10 acres of wetlands associated with tree removal.

You can reach Richie Davis at rdavis@recorder.com
or 413-772-0261, ext. 269




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