The Tennessee Gas Pipeline Co. has filed a lawsuit in Berkshire Superior Court against Massachusetts, arguing that the company does not need its permission to build through state-protected land.
The suit applies to a natural gas pipeline to Connecticut, which clips the corner of Berkshire County.
The suit, if successful, would be a blow to opponents of the Tennessee Gas Pipeline proposal for another pipeline in Franklin County, where it would cut through protected farmland and forest.
State Senate President Stanley Rosenberg, D-Amherst, called the lawsuit “totally predictable,” and declared, “This is the beginning of resolving the question of whether federal law preempts Article 97 of the Massachusetts Constitution.”
The suit seeks permanent eminent domain of six acres and temporary eminent domain of 15.5 acres in Sandisfield, and seeks easements in part of Otis State Forest, one day after a state legislative committee effectively kept state protections in place by placing a “study order” on a bill that would have conveyed the state-protected property under Article 97 of the Massachusetts Constitution.
The action follows the Federal Energy Regulatory Commission’s March 11 approval of the Tennessee Gas Connecticut Expansion Project — a 13.42-mile-long looping of existing natural gas pipeline, part of which involves a 3.81-mile-long, 36-inch-diameter loop cut across nearly four miles of state forest land. Article 97 requires a two-thirds vote of the state Legislature to release public conservation land.
Following Wednesday’s vote by the Legislature’s Committee on State Regulation and Oversight to essentially take no further action on the bill, the company filed its lawsuit, saying that since the federal commission has issued its Certificate of Public Necessity and Convenience, the Massachusetts constitutional provision is preempted under the federal Natural Gas Act.
The company seeks immediate authority from the court to proceed with its project to begin clearing trees by a March 31 deadline, for construction to begin by June 1 and be completed by Nov. 1.
Rosenberg, who visited with federal commission members last fall and asked whether they saw federal authority as preempting the constitutional provision, said their belief was that the company would have the right to move forward once it received federal approval.
The only uncertainty, he said, was whether this court case would arise over the Otis State Forest land for the Connecticut project or over protected land along the Tennessee gas Pipeline Northeast Energy Direct project in Franklin County. He predicted that the case “could go all the way to the U.S. Supreme Court.”
The Northeast Energy Direct project, for which the federal commission is now conducting an environmental review, would cross Plainfield, Ashfield, Conway, Shelburne, Deerfield, Montague, Erving, Northfield and Warwick on its route from Wright, N.Y, to Dracut in Middlesex County.
Rep. Paul Mark, D-Peru, said he has already called the company’s action “inappropriate. Not only are they trying to circumvent the Legislature, he said, they are trying to circumvent the state Constitution.
“We’ve been FERCed!” said Rep. William “Smitty” Pignatelli, D-Lenox, whose district includes Sandisfield and who has been a vocal opponent of taking protected land for the pipeline. “This is flat-out wrong.”
Pignatelli, who said he had already contacted the lieutenant governor, the attorney general and U.S. Rep. Richard Neal in an effort to resolve the situation, said, “This flies in the face of everything we’ve been trying to do for the protection of open space.”
Thursday’s lawsuit came as opponents of the Northeast Energy Project began a four-day, 46-mile walk along the pipeline route from Windsor to Northfield.
Earlier on Thursday, a group of 10 Sandisfield residents filed a petition with the federal commission to halt its approval of the Connecticut Expansion Project.
As Sandisfield Taxpayers Opposing the Pipeline, they called on regulators to “stay” the certificate for the project and to prevent the Houston-based company from moving ahead with any construction activity, including tree cutting.
“It is a violation of (FERC’s) own mandate, to obey applicable federal and state permitting and laws,” to grant a certificate for the project to Tennessee Gas Pipeline before Massachusetts has granted a Section 401 water-quality permit under the federal Clean Water Act, their filing said.
They also said, “The Connecticut Expansion goes directly through Spectacle Pond Farm in Otis State Forest, which was donated by the Audubon Society to Massachusetts. The Audubon Society is opposed to the use of this parcel for this purpose.”
On Feb. 25, Tennessee Gas wrote to the federal commission saying, “Issuance of a certificate is now critical” for the Connecticut project because of a tree-clearing window that closes March 31 to protect migratory bird species that use the trees for spring nesting.
Unless it meets that deadline, Tennessee Gas Pipeline President Kimberly Watson wrote, construction cannot begin this spring, and the company “will have trouble meeting the projected project in-service date for its committed customers.”