Landmark gas pipeline case to be heard in Berkshire Superior Court on Friday

The Commonwealth of Massachusetts has been sued by Tennessee Gas Pipeline Co. after declining to grant an easement through the Otis State Forest for a natural gas pipeline that would serve Connecticut. (Mary Serreze photo)

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By Mary Serreze | Special to The Republican
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on April 13, 2016 at 3:31 PM

Tennessee Gas Pipeline

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A case that may determine whether a provision of the Massachusetts Constitution can trump the U.S. Natural Gas Act will be heard in Berkshire Superior Court on Friday.

Tennessee Gas Pipeline Co. on March 16 sued the Massachusetts Department of Conservation and Recreation seeking immediate possession of a two-mile easement through the Otis State Forest in Sandisfield to start cutting down trees for its Connecticut Expansion pipeline project.
The four-mile pipeline section would cut through public and private lands in Berkshire County to serve three natural gas utilities in Connecticut. Tennessee won conditional approval for the project from the Federal Energy Regulatory Commission on March 11, but still needs other state and federal permits before it can begin construction.

However, Tennessee would like to begin cutting down trees now because it wants to have the pipeline in place by November. Tennessee's lawsuit seeks authority under the Natural Gas Act to condemn the pipeline easements. The company also seeks an injunction allowing it immediate entry to begin cutting trees.

Under the Natural Gas Act, companies may initiate eminent domain proceedings for federally approved pipeline projects. With a FERC certificate in hand, pipeline firms may seek a court order for condemnation to take private and public property in exchange for "just compensation."

FERC approves gas pipeline through Otis State Forest

The line would cut through the Otis State Forest to serve gas companies in Connecticut.

However, Tennessee has not yet sought such a court order for the Otis State Forest, and wishes to fell the trees, and take possession of the proposed corridor, ahead of any formal condemnation hearing. Tennessee argues that courts "routinely grant natural gas pipeline companies preliminary injunctions" allowing immediate entry and possession of property.

The docket on both sides contains numerous references to Article 97 of the Massachusetts Constitution. Adopted in 1972 as the "environmental bill of rights," the provision declares clean air and water a "public purpose" and requires that any conveyance of conservation land must gain a two-thirds vote of the state Legislature.

The state's Department of Conservation and Recreation has refused to convey rights for a pipeline easement through the state forest without such legislative approval, Tennessee claims in its complaint.
While Tennessee claims the Natural Gas Act preempts Article 97, the office of Attorney General Maura Healey disagrees, saying state sovereignty should prevail.


The Supreme Court has held that a state has "an interest ... in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breath pure air," wrote Assistant Attorney General Matthew Ireland in his brief.

The attorney general's office argues that Tennessee's motions are premature, that the project has not gained all of its necessary permits, that Tennessee has no right to begin project construction, and that the state will suffer irreparable harm if the pipeline company's request is granted.

Tennessee claims that courts have "repeatedly held that state and local statutes, ordinances, permit requirements, constitutional provisions and common law are preempted" to the extent they conflict with a FERC-authorized natural gas pipeline.

As for the immediate tree-cutting, Tennessee maintains that courts routinely grant pipeline companies pre-condemnation access to public and private properties.

Tennessee filed its lawsuit the same day a legislative committee in Boston failed to favorably advance a bill that would have conveyed the easement under the provisions of Article 97. A Statehouse hearing on the bill in November drew a large crowd, with Berkshire County residents chartering a bus to Boston.

EMass rep files bill to push pipeline through WMass forest

The Quincy-based Patriot Ledger reported that State Rep. Garrett Bradley of Hingham filed the Article 97 bill on behalf of Kinder Morgan after representatives in Western Massachusetts refused to do so.

Rep. Peter Kocot, D-Northampton, who co-chairs the Joint Committee on State Administration and Regulatory Oversight, wrote in an affidavit that House Bill 3690 was reported "as part of a study order" on March 16 because Tennessee Gas did not respond to requests for information, leaving the committee with an insufficient record with which to review the bill.

Kocot wrote that under House rules, the bill could still be revived until Dec. 31, and that Tennessee is welcome to submit project information to his committee.

The attorney general's office argues that Tennessee never intended to shepherd the bill to a floor vote, and that the pipeline firm acted in "bad faith" by having Article 97 legislation introduced on its behalf in order to get through state and federal environmental review, "with no intention of seeing the Bill through to a vote."

Around 900 acres of the Otis State Forest were acquired in 2007 at a cost of $5.2 million in taxpayer dollars. The property contains 15 acres of 400-year-old hemlocks within an interconnected open space of 8,500 acres. The state property contains the 62-acre Lower Spectacle Pond, from which Tennessee hopes to withdraw a million gallons to pressure-test its pipeline.

The complicated land acquisition was brokered by the Massachusetts Audubon Society. In a supporting brief, Mass Audubon says it "assumed considerable risk, and expended significant funds" when it moved "swiftly and strategically" to secure the property, threatened by development, before conveying it to the state.

The impacts of any ruling that the Natural Gas Act preempts Article 97 and "overrides public charitable trusts" would be "far reaching and disastrous for the Commonwealth's citizens," wrote lawyers for Mass Audubon.

In a related matter, FERC previously told Tennessee it must gain clearance from the U.S. Fish & Wildlife Service to cut trees after March 31 because of concerns over vulnerable species. On Wednesday, Fish & Wildlife sent a letter to Tennessee, clarifying that such a deadline does not really exist, and that Tennessee must merely demonstrate under a streamlined process that any tree-cutting would not harm the federally threatened long-eared bat. Earlier this week, U.S. Sen. Elizabeth Warren, D-Massachusetts, called upon the federal agency to deny Tennessee the tree-cutting rights.

Tennessee also faces a potential federal lawsuit around the Connecticut Expansion. A group of private property owners March 21 filed notice of intent to sue Tennessee and FERC over alleged procedural violations. The suit was filed by Sandisfield Taxpayers Opposing the Pipeline, or STOP.

Tennessee claims it "will suffer irreparable harm, the public interest will be harmed, and the project will be unreasonably delayed" if the court does not confirm its authority to condemn the easements and enter and possess the conservation land.

The Connecticut Expansion Project is separate from Kinder Morgan's larger Northeast Energy Direct, a 412-mile line that would transport natural gas from Pennsylvania to markets in the Northeast.
The hearing before Superior Court Justice John Agostini is set for 1 p.m. on Friday in Berkshire Superior Court in Pittsfield.