Massachusetts Attorney General Maura Healey has requested a two-week delay in a Berkshire Superior Court case brought by Tennessee Gas Pipeline Co. that seeks eminent domain authority to prepare 15.5 acres in Sandisfield for expansion of a pipeline through Otis State Forest.
The outcome of that case, which challenges the state Constitution’s power over federal eminent domain authority, is seen as a crucial legal test by opponents of Tennessee Gas Pipeline’s planned Northeast Energy Direct pipeline project, which would pass through Plainfield in Hampshire County eight Franklin County towns.
As of the court’s closing Tuesday afternoon, the Thursday hearing had been changed to a scheduling conference for lawyers involved at the Pittsfield courthouse.
Representing the state, the attorney general filed late Monday for a continuance of the scheduled Thursday hearing on Tennessee Gas Pipeline’s lawsuit and its deadline for responding to the complaint.
Tennessee Gas Pipeline asserts that federal approval of its project through state-protected forest in the southwest corner of the state trumps the state’s constitutional protection of such lands.
Additional time — in some cases described in the filing as “at least two weeks,” and in others as “10 to 14 days” and “no more than two weeks” — is needed, the attorney said, for a response by the Massachusetts Audubon Society. Audubon helped the state acquire forest land that the state argues is protected from development under Article 97 of the Massachusetts Constitution, and the Society “has a clear and compelling interest in responding to Tennessee’s motions,” said the attorney general’s motion.
The company, which also plans to build a natural gas pipeline across 64 miles of Massachusetts, as well as southern New Hampshire, filed its court case on March 11 after the Federal Energy Regulatory Commission approved Tennessee Gas Pipeline’s Connecticut Expansion Project, seeking eminent domain over land along its route, including two miles of state-owned forest land in Sandisfield.
Because the federal commission on Friday formally requested additional information and assurances from Tennessee Gas Pipeline before it will allow the start of tree cutting for which a March 31 federal deadline is in place to avoid spring nesting of migratory birds, the attorney general argued there is no pressing deadline for preliminary injunctive relief requested by the company.
Since the company has sought an extension from the U.S. Fish and Wildlife Service to allow tree cutting along the pipeline route until May 1, the attorney general’s filing says, “Tennessee’s proposed schedule for this case is entirely premised on an extension that it has not yet received from USFWS. (TGP) … nonetheless asserted that this schedule was necessary to meet its commercial obligations …”
It pointed to the federal commission’s language in Friday’s communication with Tennessee Gas Pipeline asking for evidence from the Massachusetts Department of Environmental Protection that a Section 401 Water Quality Certificate authorized by the federal Clean Water Act is not required for non-mechanized tree cutting for the project, and says DEP has not issued such a decision. The commission also called for evidence that the U.S. Army Corps of Engineers agrees that a water quality certificate is not needed.
“MassDEP is in the process of addressing the potential impacts from felling trees in the easement area and whether such activity requires a Section 401 Certificate, but it is unlikely that (its) review and determination, and FERC’s review … and determination will issue in time for Tennessee to complete tree cutting by May 1.”
Tennessee Gas Pipeline responded Tuesday morning with a filing opposing any delay, arguing that National Gas Act, under which federal regulators approved its 13.42-mile project, preempts the Massachusetts Constitution, including its Article 97.
The company argues that the federal commission’s request Friday for additional information about starting work on the project “increases, not diminishes, the need for a hearing on March 31” because a condemnation order by the court is needed before Tennessee Gas Pipeline can clear trees. It also needs access to the property “to obtain permits and to conduct pre-construction activities.”
It calls the attorney general’s request for a delay “misleading,” contending that the U.S. Army Corps of Engineers “has consistently determined that non-mechanized tree felling in the property does not require a Section 404 permit,” and that the corps is not asserting jurisdiction over the proposed tree felling.
And it calls the attorney general’s request for allowing additional time for Massachusetts Audubon “unconvincing” because, the company argues, it lacks standing in the case and also “actively participated in the FERC proceedings and actively opposed” the project before the commission issued its certificate.
“Tennessee needs immediate condemnation and entry to be able to commence construction by June 1 … and complete construction by Nov. 1,” says the company.