Boston — Massachusetts Attorney General Maura Healey’s office told state legislators Saturday (April 23) that a decision by Judge John Agostini in the Sandisfield pipeline case, where natural gas giant Kinder Morgan subsidiary Tennessee Gas Pipeline (TGP) wants to forge a corridor for a new pipeline through state-protected Otis State Forest, may be a week to 10 days off, pushing Tennessee Gas past its tree cutting deadline of May 1, something the company says will cause it “irreparable harm.”
The timing may push the tree cutting into the fall, since U.S. Fish & Wildlife has not yet issued a waiver of its dictate that trees cannot be cut between March 31 and October 1 due to the breeding season of migratory birds and other species.
The proposed pipeline would enlarge an existing pipeline corridor by up to 100 feet. Ben Hillman
Elizabeth Mahony, Assistant Attorney General and Senior Policy Advisor for Energy, told legislators of this “indication from Judge Agostini…that obviously takes [Tennessee Gas] past their self-imposed deadline to cut trees by May 1.”
Tennessee Gas took the state to court last month for access to state-owned and constitutionally protected land in Otis State Forest in Sandisfield. TGP says it has the right to the land under the federal Natural Gas Act, which allows pipeline companies to seize land by eminent domain if necessary for the construction of natural gas pipeline projects approved by the Federal Energy Regulatory Commission (FERC).
The company says it must have the land cleared and everything ready for construction by June 1 for its Connecticut Expansion Project, a 13.2 mile storage loop. If not, the company says at the least its profits will be damaged, its Connecticut customers affected, and the entire project may be threatened. Gas from the Connecticut Expansion Project pipeline, which will also run through parts of New York state and Connecticut, is intended only for Connecticut customers.
TGP went to court for an extension of U.S. Fish & Wildlife’s tree cutting schedule that prohibits cutting trees during the breeding and roosting season between March 31 and October 1. In an April 12 letter the agency said while the area to be cleared in Otis State Forest is also a bat habitat, its concern in this instance was for migratory birds. And Assistant Attorney General Matthew Ireland said as much in his argument in Berkshire Superior Court, noting that this is just one more reason why TG can’t stick to it’s November 1 completion timeline anyway, so why not make sure precautions are taken.
Pipeline construction would endanger Otis State Forest wildlife habitat and remove old-growth forest with 400-year-old hemlocks . Photo: Heather Bellow
This particular case has far-reaching implications since the land in question is protected under Article 97 of the Massachusetts State Constitution, and easements from such land are possible only by a two-thirds super majority vote of the Legislature. Ireland also told the court the Legislature should be allowed to make a decision in this case before it recesses at the end of July, and that a favorable vote for TGP would avoid a “conflict” altogether and make the whole matter “moot.”
But TGP objects to any delays to its construction schedule.
Mahony further wrote that Agostini gave “no indication” of how he will rule in the matter, other than what can be gleaned from his comments at the April 15 hearing. Agostini made it clear on two occasions that Article 97 cannot be ignored as TGP would have it, and said any decision could have massive ramifications on commerce everywhere, as it may set a precedent.
Mahony also wrote that TGP’s deadline to cut trees by May 1 “was balanced on the premise that they’d get a waiver from USFWS [Fish & Wildlife] to offset a FERC condition in their certificate.”
U.S. Fish & Wildlife representatives familiar with the situation could not be reached Monday.
Lower Spectacle Pond in Otis State Forest. More than a million gallons of water from the pond would be drained to flush out the proposed pipeline. Photo: Ben Hillman
And just last week Kinder Morgan announced it would “suspend” its larger Northeast Energy Direct (NED) pipeline that was to run from New York state through Massachusetts and New Hampshire, ending in Dracut, Massachusetts. The reason cited by the company was “inadequate capacity commitments” from customers.
But the $3.3 billion NED project was also highly controversial and the prospect of land seizures under eminent domain angered many residents along the proposed pipeline path. Residents and environmentalists were further infuriated to learn that much of the gas was for export.
It is unclear whether the suspension of NED will have any effect on the Judge Agostini’s decision, and Kinder Morgan spokesperson Richard Wheatley, by phone from corporate headquarters in Houston, Texas, told The Edge he would not speculate.
He said the Connecticut Expansion Project is a “totally separate project” from the NED. He said that a 14.8 mile section of NED pipeline proposed for West Hartford is the nearest section of NED pipeline to the Connecticut Expansion loop. It wasn’t to go online, Wheatley said, until 2019. Since it was part of the NED project, it too is suspended.
Edge environmental correspondent and Washington-based environmental lawyer Mary Stewart Douglas told The Edge she doubted the suspension of NED would affect the Connecticut Expansion since that project “has the customers it needs, unlike NED.”
Douglas further said the $85 million Connecticut project is far less expensive than NED and doesn’t raise as many “difficult issues.”
Sandisfield Taxpayers Opposed to the Pipeline (STOP) member Jean Atwater-Williams told The Edge it was likely TGP will push hard on the Connecticut Expansion Project for the possibility of a favorable legal precedent into the future.
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