Oral arguments heard in landmark Berkshire County pipeline case

(Mary Serreze photo)

By Mary Serreze | Special to The Republican
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on April 16, 2016 at 11:20 AM, updated April 16, 2016 at 1:18 PM

Tennessee Gas Pipeline

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PITTSFIELD —€” Before a packed courtroom Friday afternoon, Berkshire Superior Court Justice John Agostini questioned lawyers for Tennessee Gas Pipeline Co. and the office of Massachusetts Attorney General Maura Healey in a case being watched by pipeline foes and energy boosters alike.
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 Gas Pipeline Co. sues Massachusetts agency

The Connecticut Expansion would send a 3.8-mile pipeline loop through Berkshire County.

The state's Department of Conservation and Recreation, which owns the forest, has refused to convey the easement, citing Article 97 of the Massachusetts Constitution, which requires legislative approval for the conveyance or condemnation of conservation land. What's more, the state's Department of Environmental Protection on Thursday said any tree cutting will need a certificate under the Federal Clean Water Act — a permit which the pipeline company has not yet procured.

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.

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.

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 

Agostini queried Ireland, asking if there any other way Kocot could have procured the information he wanted. "Good faith cuts both ways," he said. Ireland responded that the legislature has the duty to ask a proponent for information, and that not all information Kocot sought was part of the public record.

"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.

Beacon Hill hearing on bill to site natural gas pipeline through Otis State Forest draws crowd

The short Kinder Morgan line would serve natural gas utilities in Connecticut

Messenger repeatedly insisted that Tennessee has the statutory right to condemn and take possession of the land, regardless of whether it's in a constitutionally-protected state forest, and whether or not the company has all state and federal permits in hand.

"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