Boston — After months of negotiations, Kinder Morgan subsidiary Tennessee Gas Pipeline Company LLC agreed in a settlement to pay the state more than $640,000 for an easement in Otis State Forest, a swath of almost two miles that the company was granted for a gas storage loop in Berkshire Superior Court last May.
The Thursday announcement, made by Matthew Beaton, Gov. Charlie Baker’s Energy and Environmental Affairs Secretary and Attorney General Maura Healey’s office said the easement for Tennessee Gas’ Connecticut Expansion Project will include environmental mitigation, recreational improvements and securing additional conservation land that will bring the total compensation by the company to $1.2 million.
The Federal Energy Regulatory Commission (FERC) approved the project, which would extend the company’s existing natural gas pipeline infrastructure across three states – New York, Connecticut and Massachusetts – and see four miles of new underground pipeline.
But to expand the existing pipeline corridor in Otis State Forest requires clearing of forest that is now owned by the state, which purchased it for conservation and put it into protection under the Department of Conservation Resources (DCR) and Article 97 of the Massachusetts Constitution.
Environmentalists are concerned about the impact of the pipeline on Spectacle Pond in Otis State Forest. Photo: Heather Bellow
Healey’s office put up a fight last spring over the company’s plan to seize the land with blessings from FERC and the backing of the Natural Gas Act of 1938, but Judge John Agostini ruled that federal law trumps state law in such cases and applied eminent domain, allowing Tennessee Gas to have the easement.
But Tennessee Gas wouldn’t get it for free, and this is money paid for its encroachment into a forest in the town of Sandisfield that many thought was untouchable and is considered some of the state’s most pristine nature. The easement sits at the edge of an old growth forest.
“This settlement sets a very high bar for the value of conservation land taken by eminent domain in Massachusetts,” Healey said in a prepared statement. “We work hard to protect conservation land across our state, and we are pleased that this settlement requires Tennessee Gas to provide important mitigation relief during the construction of the project and assure no net loss of critical conservation land in the area.”
It should be interesting to see what happens next as environmental groups presently have Tennessee Gas tied up in legal action regarding permits to protect the area from a massive construction project, one that will see the beloved Spectacle Pond used as a water source for flushing new pipes with interiors that may contain toxic chemicals, to cite one concern.
Also Tennessee Gas has had to ensure, in consultation with Native American tribes, including the Stockbridge-Munsee Community Band of Mohican Indians, that this 13-mile pipeline does not interfere with any Ceremonial Stone Landscape features along the path.
Yet the settlement money certainly can’t hurt.
“As part of the $640,000 settlement,” the statement read, “Tennessee Gas will pay $300,000 for the Department of Conservation and Recreation (DCR) to identify and acquire additional conservation land in the vicinity that provides ecological functions equivalent to the land impacted by the pipeline.”
Another $300,000 of the settlement is earmarked for “mitigation and improvements to Otis State Forest, including $60,000 to be used by DCR for recreational improvements,” and $40,000 for “fair market value of pipeline easements.”
Rep. William “Smitty” Pignatelli, D-Lenox, in the hemlock forest that will be cleared by Tennessee Gas if and when all permits are secured. Photo: Ben Hillman
Beaton’s statement also said that the DCR came up with $640,000 as an “appropriate” number for mitigation costs given its fall 2015 Massachusetts Environmental Policy Act review.
“The financial mitigation package that the Commonwealth will receive represents the tireless work of the state to ensure that the taking of conservation land through eminent domain is placed at an extremely high value,” Beaton said. “Importantly, this package will allow the state to acquire additional land for future preservation that will truly benefit generations of people within the Berkshire County region and beyond.”
While Rep. William “Smitty” Pignatelli, D-Lenox, said he “applauds” and “is happy for the attorney general’s office,” he added that the settlement falls short.
“It’s something I’ve always had a problem with: $300,000 of that $640,000 goes to acquire other lands — it sounds good but it could be on Cape Cod,” he said. “If the Berkshires are being affected, then we should be looking to acquire other comparable lands in the Berkshires. Let the money stay here.”
Jane Winn of Berkshire Environmental Action Team (BEAT) was not impressed by this aspect of the settlement, either.
“Well, yes, of course we’re having loss of critical land and, yes, the state will replace it,” she said. “But the other land should be protected as well, not instead of. And FERC should have made it a requirement of the [Tennessee Gas’] certificate that it respect our state constitution and go through usual Article 97 process that would have required a two-thirds vote of the Legislature to release the land.”
And Katy Eiseman, Director of Stop the Pipeline Massachusetts Network said this particular piece of land was protected for a reason, and can’t be replaced. Eiseman also issued the following statement: “While we like to think of the Attorney General as ‘the People’s lawyer,’ her office made clear to us early on that they considered DCR to be their client in this case. And DCR’s marching orders from Charlie Baker seem to be that his energy combo platter is more important than our constitution and the natural treasures of our Commonwealth.”
Another beef Pignatelli has with the agreement is that Sandisfield isn’t getting a fair shake in this deal. Pignatelli has worked closely with the town from the get-go as an intermediary to ensure this very rural town of 800 people doesn’t end up with pipeline-related problems that could sink its fragile budget, among other things.
“My issue all along is to support the community and there is nothing in this agreement that supports any of the expenses that were agreed upon [by Tennessee Gas] to be reimbursed, or mitigation for the community of Sandisfield.”
Pipeline company lawyers had drafted but not signed an agreement with Sandisfield officials stipulating about $1 million in compensation for wear and tear to the town’s infrastructure and reimbursement of $40,000 in town legal fees to negotiate with Tennessee Gas attorneys. The company has since reneged.
Pignatelli said he continues to speak to officials in Healey’s office as a reminder that Sandisfield is at risk and says they are listening.
“They’re not giving up on compensation or hold harmless [by Tennessee Gas] for Sandisfield, but sadly it’s not in this agreement. Hopefully, they can keep this conversation going as [Tennessee Gas] acquires permits along the way.”
Yet again Pignatelli expressed disgust with the Fortune 500 gas goliath in its treatment of a small town in the path of its pipe-laying.
“I want them to be an honorable company, but this doesn’t show any good faith on their part.”