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Pipeline fight: Mass. Article 97 vs. fed approval

Can state Constitution trump FERC?



Recorder Staff
Thursday, March 31, 2016

As it heads to court, the conflict between Tennessee Gas Pipeline Co. and the Massachusetts Constitution over state-protected conservation land along pipeline routes is anything but clear.

State Senate President Stanley Rosenberg said he believes the case could eventually find its way to the U.S. Supreme Court to resolve whether the federal government’s pipeline approval authority trumps the state’s constitution — the oldest state constitution in the United States, older than the nation itself.

Article 97 of the state Constitution, state officials contend, requires a vote of the Legislature to undue conservation protections granted by the state.

The gas pipeline company has sued in Superior Court seeking to get eminent domain power over protected land in southern Berkshire County for a segment of pipleline in Sandisfield, and the legal precedent that may emerge from the suit would affect the Northeast Energy Direct proposal through eight Franklin County towns. Many NED foes have been hoping Article 97 would protect private land along that pipeline route.

An analysis done by the University of Massachusetts Department of Environmental Conservation last October estimated that 17 miles of the 64-mile NED pipeline passes through conservation land, with more than 12½ of those affecting Article 97 land directly.

Rosenberg has advised the Federal Energy Regulatory Commission members about the potential conflict during an extended conversation with them in Washington, D.C., and was advised by them informally that Tennessee Gas Pipeline Co. would have the right to move forward once it received federal approval.

Northeastern University School of Law Professor Peter D. Enrich isn’t encouraging about Article 97’s chances of trumping the 1938 National Gas Act that asserts the right of the federal government to authorize interstate pipelines.

“The case law, I think is pretty standard,” said Enrich, who specializes in state and local government law and its relation to federal law. “The reality is, for the purposes of federal preemption, a state statute, a state constitutional provision, or a local ordinance enacted under authority granted by state law, pretty much are all going to look the same. That’s state law, and if they’re in direct conflict with federal law, then federal law is supreme.”

The only example of such a conflict with a Massachusetts Constitutional provision Enrich could recall was a 1981 case in which the Coalition for Basic Human Needs, an advocacy group on behalf of welfare recipients, sued Gov. Edward J. King after his administration refused to send out welfare checks. They cited a federal law requiring prior notification to discontinue benefits.

The state used as a defense a constitutional amendment saying the state can’t spend money unless an appropriation has passed the Legislature. The First Circuit Court of Appeals determined that lawfully enacted federal regulations supersede a state constitutional provision under the facts of that case, he said.

“I think it would be surprising to find an area where an explicit federal enactment in an area that’s within the scope of federal authority was held to be constrained by a state constitution,” he said. “I can’t think of any instances that look like that.”

Lee P. Breckenridge, a Northeastern University law professor specializing in environmental law, added, “What may be unusual … is a state’s refusal to basically engage in transferring state-owned land or easements.” When that comes in conflict with FERC “that could well turn into quite an interesting confrontation,” she said.

She pointed out that FERC’s March 11 certification of TGP’s Connecticut Expansion Project in the Berkshires specifies, “A rule of reason must govern both the state and local authorities’ exercise of their power and an applicant’s bona fide attempts to comply with state and local requirements. ... The Commission cannot act as a referee between applicants and state and local authorities regarding each and every procedure or condition imposed by such agencies. In the event compliance with a state or local condition conflicts with a Commission certificate, parties are free to bring the matter before a Federal court for resolution.”

In a March 24 filing with FERC calling for a halt to the pipeline company’s request to begin tree cutting along the Connecticut Expansion Project route, she noted the company’s lawsuit against the state of Massachusetts in Berkshire Superior Court, writing, “Curiously, the company has … commenced a proceeding in state court, rather than following through with the constitutionally mandated legislative process for disposition of publicly held land, set forth in Article 97.”

Private land trusts

There’s also some room for interpretation as what is included under Article 97, adopted by the Legislature in 1969 and 1971 and approved by voters in 1972, for the state to protect lands and easements acquired “by purchase or otherwise” for the public purpose of providing for conservation for a host of natural resources, including agricultural, forest and water.

A 1998 state Energy and Environmental Affairs policy on Article 97 land disposition makes no mention of private or independent agencies such as land trusts that own conserved properties or maintain conservation restrictions or easements.

Leigh Youngblood, executive director of Mount Grace Land Conservation Trust, said that the Article 97 protection of conservation restrictions held by nonprofit organizations like hers have not been tested in court, but that in any case, the public trust doctrine that requires that any lands left in trust for conservation purposes are required to be protected for their original purposes, under authority of the state attorney general’s charitable trust division.

And Richard Hubbard, executive director of Franklin Land Trust, says, “I’ve heard it argued both ways whether privately held restrictions held by land trusts are covered by Article 97 or not.”

Since state environmental secretaries and their departmental commissioners approve of conservation and agricultural preservation restrictions — even when those protected lands are held by land trusts — he says, “Certainly the state has some (legal) standing to want to defend those.”

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