Pittsfield — The battle between pipeline goliath Kinder Morgan and the state of Massachusetts over a slice of state-owned land in Sandisfield had its first major go-round in a packed courtroom Friday (April 15) in Berkshire Superior Court today with Judge John A. Agostini presiding over a eminent domain hearing in a case that Agostini himself said may have massive ramifications for state sovereignty in the world of interstate commerce, where the laws of the nation have historically trumped state rule.
Agostini heard arguments on both sides, and said he would make a decision as soon as possible given the importance of the issue.
More than 120 protesters from pipeline-affected towns all over the state flooded Park Square outside to protest Kinder Morgan subsidiary Tennessee Gas Pipeline’s attempt to seize by eminent domain a section of Otis State Forest that will require clearing trees on land protected under the state’s constitutional Article 97. The town of Sandisfield sold this land to the state with help from Mass Audubon about 10 years ago to keep it in conservation. The forest is habitat to some endangered species and a stand of old growth hemlocks estimated between 400 and 450 years old.
Old growth forest in Otis State Park where Tennessee Gas Pipeline proposes to cut a swath for a new natural gas pipeline. Photo: Ben Hillman
The land Tennessee Gas Pipeline Company wants for their 3.8 mile Connecticut Expansion Project is on an established pipeline route but requires felling trees to widen the corridor. The existing two pipelines were installed before this land was protected by Article 97, an issue that has found its way into what might otherwise have been a standard eminent domain case.
It’s complicated. Getting an easement on Article 97 land requires a two-thirds super majority vote in the Legislature.
And the reason Tennessee Gas has gone to court over taking that land is because it has a construction schedule that originally required the company to have all the trees cleared by June 1 for a completion date of November 1. But Massachusetts Fish & Wildlife will not allow cutting between March 31 and October 1 to protect mostly migratory birds during their roosting and breeding season. So the company asked for an extension to allow cutting outside that time period.
Agostini began by saying he appreciated the “passion” surrounding this case, but he warned the audience that this was not a “political rally” or “athletic contest.” And throughout the hearing, everyone behaved.
At a rescheduling hearing two weeks ago for this preliminary injunction hearing, Agostini hinted he would not sweep the problem of Article 97 aside, something Kinder Morgan Attorney James Messenger in essence said could be steamrolled by its certificate from the Federal Energy Regulatory Commission (FERC), which gives “automatic” access to land that doesn’t belong to the company through the [federal] Natural Gas Act, which allows land seizure by eminent domain for pipeline buildouts.
“Courts have always ruled that the federal system can’t function unless federal law is supreme,” Messenger said. “The Natural Gas Act could not function if the state interferes.”
Map of the proposed extension of Tennessee Gas pipeline into Connecticut.
Assistant Attorney General Matthew Ireland contended the key issue is that Article 97 is so important even FERC weighed in, telling Kinder Morgan it needed more information about the company’s adherence with local and state rules. The company still, for instance, does not have a green light from the Department of Conservation and Recreation (DCR), which manages the land in question, nor 401 Water Quality Certificates from MassDEP or the Connecticut Department of Energy and Environmental Protection.
Messenger said because Tennessee Gas has its FERC certificate, they have everything they need, and said “we feel we have worked diligently with all the state agencies, complied with the entire state process.” Ireland said no, FERC still hasn’t given them the go ahead for the reason that not all the local and state rules have been dealt with.
Ireland said there wasn’t yet a “conflict” because the Legislature hasn’t voted to exempt this land from Article 97 protection. He said the state is taking the position that Article 97 preempts everything else, and the Legislature is in charge of it. And if it does come to the point of whether federal law trumps state law, Ireland says the state has powerful case law up its sleeve in Gregory v. Ashcroft, one tried before the U.S. Supreme Court that creates “an exception to federal preemption…a sovereignty exemption.”
Agostini said this particular argument was “opening a can of worms” that could set a far-reaching precedent. If every state can do this, he said, there could be ramifications for all sorts of infrastructure, including highways.
Existing pipeline route installed before land was purchase by the state, and protected by Article 97. Tennessee Gas would double the size of this corridor.
But Ireland said there were very few cases where a pipeline would be blocked by Article 97. “It’s not a blanket prohibition,” he said. “There is a limited amount of Article 97 land and not every pipeline is potentially going to draw a conflict.”
Ireland further said many things should be exhausted before the chainsaws hit the trees. “There’s a mandatory alternatives analysis that has to be gone through…that opens the door for considering ways to reroute a pipeline or anything that might conflict with Article 97.” He said if rerouting is possible, “then you basically don’t have a conflict,” the issue is “moot.”
And if rerouting isn’t possible, Ireland continued, there is still time for the Legislature to approve this exemption. Kinder Morgan advocated for a bill filed by Rep. Garrett Bradley (D-Hingham) in 2015 to strip Berkshire and Hamden Counties of conservation protection. The bill is now in study, and Ireland said the bill is sitting quietly there because Tennessee Gas has “ignored” several requests for information by the committee in charge.
“Tennessee [Gas] has sent information to FERC on almost a daily basis, but they couldn’t be bothered to send information to the Legislature,” Ireland said, adding that most bill proponents will promptly respond to those requests. “In terms of bad faith they’ve obstructed the legislative process.”
Messenger said he was “not aware of any letters saying ‘we need more information’.”
Ireland said the Legislature has until the end of July to decide the matter, and if they decide in favor of Tennessee Gas, there’s no conflict.
Agostini wondered whether the Legislature was “really trying to work out the quirks in this or are they simply stonewalling…?” He wondered whether the Legislature was doing its own research.
Not on the Sandisfield issue, Ireland said, adding he believed there was a record of these requests made by the Legislature.
“At minimum, the Legislature should be given an opportunity to do its constitutional duty and act on this bill,” Ireland said.
Ireland further argued that the pipeline project was likely going to be held up anyway, by any number of factors that could push construction to the fall. One of those is that Tennessee Gas still does not have water quality approval from MassDEP, “hasn’t even bothered to talk to DEP,” and added that the company made a “misleading statement to FERC” about DEP’s instructions about when to cut. “The tree-cutting date is a condition of the certificate,” Ireland said, and the company’s plan to leave them in place is something the DEP has said they may not allow because it would block water flow.
Ireland said FERC requires a “definitive statement” from Tennessee Gas on this. And Messenger said water quality permits are often issued before cutting. He said pipelines wouldn’t get built if all permits had to be in place first.
Ireland then brought up the April 12 letter from U.S. Fish & Wildlife that said it had concerns about migratory birds in the clearing zone. He used this as another argument why Tennessee Gas may not be able to stick to their construction schedule, yet another reason to let the Article 97 issue play out in the Legislature. The company said it would hire monitors to make sure the company was not cutting trees where birds were nesting, and won’t cut those trees or those in a buffer zone. He said finding nests “could definitely derail their very tight construction schedule…that goes to the harm element.”
Agostini said this might be too “speculative.”
Ireland said given the warm winter it was a possibility, and negates all the harm the company says a delay will cause it.
That harm, Messenger said, would be “irreparable.” He said the company needed to get on the land immediately to gather information necessary for obtaining all the necessary permits.
Agostini, who told Messenger he was “struck” by the fact that the company advocated a bill and didn’t answer the Legislature’s requests, said a financial setback for the company did not meet the irreparable harm standard.
“Costs may go up,” Agostini said, wondering why the company wouldn’t simply “pass costs on to customers as most businesses do…irreparable harm is harm that can’t be repaired.”
Otis State Forest, where Tennessee Gas Pipeline Co. seeks to expand its pipeline network to serve clients in Connecticut. Photo: Heather Bellow
Agostini further said another possible delay may come in another way. “If the Commonwealth loses, the SJC (Supreme Judicial Court) will handle it and they won’t be as responsive. The legal process may not comport with your schedule, and you have those intrinsic issues that will come into play.” He said given the ramifications of this case, “this doesn’t end with this court. These issues will be playing out.”
But it ultimately swung back around to whether all these details of permits, birds and trees will be crushed by federal law.
Messenger said everything indeed, would be, under the Natural Gas Act. “You get eminent domain automatically if you have the [FERC] certificate.”
Ireland said it wasn’t that simple in the case of Massachusetts and Article 97. He said it goes to the “heart of the state’s sovereignty, the heart of the way the state intends to govern itself and the separation of powers between branches of government.” Massachusetts, he said, is “unique among 50 states in that it creates a special conservation protection for land that rests solely with the Legislature to allow or undo,” and that the state decided “some areas are so important that they have to be protected by the Legislature.”
Agostini went right for it. “The supremacy clause has always been the glue that keeps the states together…the courts will look at the ramifications of this. I think we’re dealing with a very serious issue that may have consequences beyond anything anyone can imagine. You start chipping away at what keeps us together as a country…I don’t know if that’s a comfortable argument to make.”
“Not every state can replicate this,” Ireland said. “It’s just limited to land in Massachusetts. We don’t even have a conflict right now. This is unique and limited.”
And Messenger repeated his refrain that eminent domain is in play once FERC gives its blessing. “The certificate is automatic, final, and binding.”
Messenger then said something that wasn’t exactly true, according to Sandisfield’s Town Manager Alice Boyd, who spoke to The Edge after the hearing. He said while Tennessee will pay the town for road damage “we don’t have any agreements with any towns on this project. There’s nothing tying Sandisfield to the property, they don’t own the property. It’s a red herring.”
Boyd told the Edge last month that an agreement had gone back and forth between the town and Messenger. He red lined it, she said, but never signed. “He’s fully aware,” Boyd said. “I have his emails.”
Agostini brought it back to Article 97 again, reminding Messenger that FERC said “we have to deal with Article 97,” that “the parties should cooperate and work out a solution.”
And back to the issue of harm, which Messenger says will be worse for Tennessee Gas. “I don’t see any harm to the Commonwealth…the only thing the Commonwealth is entitled to is compensation…the value of the easement…there is a lot of harm to Tennessee if we have to wait 6 months.
“What this case is about,” Messenger added, “is the Commonwealth trying to do anything they can do to delay a federally authorized project.”
Ireland said that wasn’t true, that the state was trying to have the preemption question decided. “They’re twisting what we’re saying…that preemption issue preempts everything.”
And Ireland again brought it back to Article 97 and harm to the state. He said if they get that land, “once they cut a mature tree it is at minimum 20 to 50 years for the harm to be undone… cutting a mature tree is irreparable harm.”
Messenger cited “market factors” and things that will affect customers of the project, Connecticut residents and businesses, and trickle down effect of financial losses.
State Rep. William Smitty Pignatelli, left, and Sandisfield resident Ron Bernard in front of Berkshire Superior Court. Photo; Heather Bellow
Sandisfield residents were hardly sympathetic, and called Tennessee Gas out after the hearing. Jean Atwater-Williams of STOP (Sandisfield Taxpayers Opposing the Pipeline) told the Edge Messenger’s argument that the company needs to get on the land immediately so it can work towards its permits is dishonest since the company already has access. “They’re over there all the time,” she said. “It’s public land.”
She further said the company’s legal team uses the fact that it has land agreements from landowners as an argument to proceed. “But it’s under eminent domain,” she said.
“It is disingenuous to think that landowners had any choice,” said Ron Bernard, Atwater-William’s husband. “It’s an offer you can’t refuse.”
And Rep. William “Smitty” Pignatelli (D-Lenox) called Tennessee Gas out on the big one. “If they feel they can circumvent Article 97, then why did they file legislation in the first place?”
Bernard said this case represents the changes in the way society views energy, and how to do things into the future. “It will play out in an odd way with states rights and the preemption issue,” he said. “If it’s not Massachusetts it will be somewhere else. But Massachusetts is in a position to test it.”
He said it wasn’t going to be easy, though. “This judge has got a hot potato. It’s radioactive. It’s a very big thing coming out of little Sandisfield.”
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