Court airs pipeline Article 97 case

  • Anti-pipeline demonstrators outside Berkshire County Superior Court building on Friday. RECORDER STAFF/RICHIE DAVIS

  • Map shows major open space properties in Franklin County that could be affected by Northeast Energy Direct pipeline.

Recorder Staff
Published: 4/15/2016 7:20:58 PM

PITTSFIELD — Dozens of Tennessee Gas Pipeline Co. project opponents — many from Franklin County — descended Friday on Berkshire Superior Court for a lawsuit hearing that could help determine one of the key issues in construction of the Northeast Energy Direct project through eight Franklin County towns.

The suit by TGP against the state argues in part that the state Constitution’s Article 97, protecting state-owned conservation parcels like the two acres of affected Otis State Forest — are federally pre-empted by the National Gas Act. The case is seen as potentially setting a precedent for more than 100 state-protected properties along the path of the NED project, now undergoing a federal environmental impact review.

TGP is seeking immediate authority from the court to begin clearing trees for construction to begin by June 1 and be completed by Nov. 1.

Although Judge John A. Agostini questioned whether allowing states to exclude themselves from federal pre-emption could “open up a can of worms” and undermine the federal pre-eminence on which highways, railroads and other infrastructure depends, Assistant Attorney General Matthew Ireland argued that Massachusetts has a unique case of a narrowly defined constitutional provision with a legislative work-around that hasn’t been properly allowed to function, in part, because TGP failed to comply with repeated legislative requests for information.

The company could have worked around the Article 97 issue, he argued, by slightly altering the path of the project.

Ireland said there would be irreparable harm to state sovereignty if the court struck down Article 97 without having to, since by waiting until the end of the legislative session in July, the decision on the state’s constitutional provision might be resolved by the Legislature. Or FERC might not allow the project to go forward because of other permissions that Ireland said are still outstanding. There would also be irreparable harm in allowing trees to be cut down in the forest that would take 20 to 50 years to regrow to their current stature.

Ireland argued that allowing easements along the route is “premature,” since release of the Article 97 issue has not been resolved.

Proposed legislation to allow 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. Ireland said there is a chance the Legislature could approve removing the protections, even though legislation stalled in a House committee.

“The basis for a preliminary injunction isn’t there,” Ireland said.

He also pointed to a filing Thursday with FERC by the state Department of Conservation and Recreation, which disagrees with TGP’s contentions that the state agency has no jurisdiction to issue a 401 Water Quality Certification for tree cutting, adding that any statements by the Army Corps of Engineers on its jurisdiction under the Clean Water Act Section 404 — regulating discharge of dredged or fill material into water bodies, including wetlands — have no say in state 401 jurisdiction, and DEP “has not agreed that tree felling can occur before a 401 Water Quality Certification is issued.”

The filing said DEP is still reviewing whether to issue the needed permit, and Ireland argued that could take a matter of months.

But FERC on March 11, certified the 13.42-mile-long, three-section project extension of an existing natural gas pipeline, which would include a 36-inch-diameter cut across nearly four miles of state forest. TGP lawyer James Messenger said that once FERC issues a permit saying the project is needed and there has been sufficient environmental review, “the court’s role is one of mere enforcement. ... It’s automatic,” and he’s never heard of a case where FERC didn’t follow granting a certificate with allowing construction to proceed.

Messenger argued that the state’s main strategy is to delay the project. And he added, “If the state tries to interfere after a project is approved, the federal system could not function. … Common sense tells you the state’s position can’t be right. The federal government has already determined there’s a need for this gas to get through.”

While Ireland said the Clean Water Act permits, as well as a determination that migratory bird nests would not be affected, must be in place before the court allows granting of eminent domain, Messenger countered that the company needs access to the affected properties to gather information needed for granting those permits.

The company says it needs to begin work on the project this spring to meet its contract obligation with customers to have its pipeline in service this November.

The main portion of the NED project passes through more than 12 miles of state-protected conservation land along its 64-mile path in Massachusetts, according to a University of Massachusetts Department of Environmental Conservation study and would cross Plainfield, Ashfield, Conway, Shelburne, Deerfield, Montague, Erving, Northfield and Warwick on its route from Wright, N.Y., to Dracut in Middlesex County.

Leigh Youngblood, executive of Mount Grace Land Conservation Trust, has estimated that NED could affect an estimated 150 to 200 parcels of protected land. Because there is “a vast amount of conservation land” involved along that path, she said, the issue could play out differently there, because of the amount of property that would be attempted to be taken by eminent domain.”

Still, she said, the Berkshire case is “a warning.”

The judge said he would make a decision soon, but did not give a specific time frame.


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