Oral arguments heard in landmark Berkshire County pipeline case
(Mary Serreze photo)
Tennessee Gas Pipeline
- Oral arguments heard in landmark Berkshire County pipeline case
- MassDEP: Kinder Morgan misled FERC in bid to cut state forest trees for Berkshire County pipeline
- State Senate climate change committee to hold hearing on Kinder Morgan gas pipeline
- Landmark gas pipeline case to be heard in Berkshire Superior Court on Friday
- Elizabeth Warren: No spring tree-cutting for Berkshire County gas pipeline
After about two hours, Agostini thanked Attorney James Messenger and Assistant Attorney General Matthew Ireland for their "thoughtful arguments," and said he would rule "as soon as possible, given the important issues raised here."
Tennessee seeks authority under the U.S. Natural Gas Act to condemn and take possession of a two-mile easement through the Otis State Forest to build a pipeline loop associated with its Connecticut Expansion project, which won approval from the Federal Energy Regulatory Commission on March 11. The firm also seeks an injunction to immediately cut down trees along the proposed corridor ahead of gaining all state and federal permits.
Tennessee, a Kinder Morgan subsidiary, on March 16 sued the state seeking authority to condemn the easement, and an injunction to start cutting down trees immediately for its pipeline.
The lawsuit was filed the same day a legislative committee chaired by Rep. Peter Kocot, D-Northampton, assigned a "study order" to a bill that would have conveyed an easement to Tennessee in exchange for a negotiated compensation package. Kocot, in an affidavit, said Tennessee had ignored his requests for project information, leaving the committee with no grounds to advance the bill.
The stalled process on Beacon Hill was raised
on Friday, with Ireland saying the court should not address a
constitutional issue until Tennessee exhausts its legislative option.
Tennessee acted in "bad faith" by having the Article 97 legislation
filed on its behalf with no intention of seeing the matter through,
Ireland charged, saying the bill could still be revived through the end
of the year if Tennessee provides Kocot with the information he needs
"Good faith cuts both ways" - Judge John Agostini
"I am struck by the argument of good faith," Agostini in turn said to Messenger. "The (legislative committee) chairman requests information, and is ignored. Then you get your certificate, and three or four days later, you're in court asking for a preliminary injunction."
Messenger said a mitigation package for the land-taking was previously approved by a state agency, and that the agreement was included in an environmental assessment and authorized by FERC. "We have worked diligently with state agencies," he said.
Messenger said Tennessee would suffer "irreparable harm" if it cannot cut trees now and start construction in June, because it had planned to have its pipeline in place by November. Agostini pressed Messenger on the "irreparable harm" claim, saying that at least in Massachusetts, a business loss does not rise to that standard. "Why can't you pass those costs on to your customers?" said Agostini. Messenger said part of the "irreparable harm" would be to customers in Connecticut who would be deprived of the extra natural gas.
Ireland claimed that the real "irreparable harm" would occur if mature trees are cut down in the forest, 900 acres of which were preserved in 2007 at a cost of $5.2 million. Messenger countered that the pipeline would merely widen an existing pipeline corridor, and noted that FERC had determined there would be "minimal environmental impact" from the project.
"Under the Natural Gas Act, you gain the power of eminent domain with a FERC certificate," said Messenger. "It is obvious that the federal regulatory scheme Congress established could not function if states could prevent eminent domain."
Messenger said it's common for pipeline companies to condemn properties ahead of gaining all state and federal permits. "It's a practical necessity," he said. "We must get on the property to get information to finalize the permits.... We could not build pipelines if we could not get condemnation and possession."
Ireland said the state was not arguing that the court can't order condemnation without all permits in hand. "What we are trying to do here is to have this preemption question decided," he said. "This court does not have authority to give a condemnation order until it decides the preemption question."
The preemption question centers upon whether Article 97, a constitutional provision unique among the 50 states, can trump the U.S. Natural Gas Act, which grants the power of eminent domain to pipeline companies.
"The preemption issue preempts everything," Agostini observed.
"It's a very real and very important constitutional issue," Ireland responded. "The preemption issue is huge."
Agostini noted that no matter how he rules, the case is likely to be appealed and land at least before the state's Supreme Judicial Court. "This matter is not going to stop here," he said.
Kathryn Eiseman, president of the anti-pipeline group PLAN-NE, said Friday that the outcome of the lawsuit will set the table for Tennessee's proposed 420-mile Northeast Energy Direct (NED), which would cross dozens of constitutionally-protected parcels in Massachusetts while transporting natural gas from the Marcellus shale region of Pennsylvania.
"Kinder Morgan could drop the Massachusetts Loop of the Connecticut Expansion and still serve the actual demand in Connecticut," said Eiseman. "Kinder Morgan's goal with siting the Connecticut Expansion in the state forest is to set a precedent to grease the skids for NED."
Rep. William "Smitty" Pignatelli, D-Lenox, said the pipeline company's lawsuit sets a bad precedent. "Article 97 was built for a purpose," said Pignatelli. "Just honor the process; that's all we've ever asked."
Mary Serreze can be reached at mserreze@gmail.com
"Under the Natural Gas Act, you gain the power of eminent domain with a FERC certificate," said Messenger. "It is obvious that the federal regulatory scheme Congress established could not function if states could prevent eminent domain."
ReplyDeleteSound a little like the MMWEC a state owned corporation an the way they loop hole around any way they can or want to. They call it case law.
Ask commissioner Greg Edwards
Our Municipal Light department is dictated to by the state owned giant MMWEC corporation
When the Bonds they issue for projects are sold the rich get even richer as there is no tax on the income from these bonds. If they were sold to our retirement investors we would be in a much better shape.Even if the millions our light dept has in reserves was invested it would be working for us not just the MMWEC corporation.
Want to guess what politicians have their hands in that cookie jar?
TAX FREE INCOME!!!
Vote SMART
LIGHT AND WATER
COMMISSION