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Residents Urge Attorney General to Appeal Pipeline Court Ruling
By Andy McKeever, iBerkshires Staff
03:44AM / Friday, May 27, 2016
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Elizabeth Mahony, Matthew Ireland, and Melissa Hoffer from the Attorney General's office spent two hours discussing environmental issues with residents in Pittsfield on Thursday.


Williamstown resident Sam Smith was one of many who urged the office to appeal. 
PITTSFIELD, Mass. — Environmental advocates want the attorney general's office to appeal a decision allowing Kinder Morgan's Tennessee Gas Pipeline Co. to start construction on a pipeline in the Otis State Forest.
 
The group 350 Massachusetts sponsored a listening session with representatives of the office on Thursday to discuss a wide range of environmental and energy concerns.
 
The intent of the two-hour session at the Ralph Froio Senior Center was for those staff members to hear the concerns of Berkshire residents.
 
One message was clear: the residents want to appeal this month's Berkshire Superior Court decision.
 
"If this land can't be protected, what land can be?" asked Sandisfield resident Jean Atwater Williams, saying it was just 15 years ago that the state spent some $5.2 million to acquire and protect the parcels of land the pipeline company plans to build on.
 
Judge John Agostini had ruled on May 9 that the state's Article 97 protection, which is a state constitutional provision protecting areas of the state for conservation purposes, are overridden by the Natural Gas Act on the federal level.
 
It is not related to Kinder Morgan's Northeast Energy Direct project that was scrapped this week. That pipeline would have cut through Berkshire County on its way to Dracut.
 
This pipeline project, known as the Connecticut expansion, has received a certificate of approval from the Federal Energy Regulatory Commission and is eyed to expand for 13 miles in Connecticut. 
 
However, the Otis State Forest is along the route, which is protected. It takes an act of the state Legislature to remove that barrier and the Department of Conservation and Recreation refused to grant the Tennessee Pipeline Group access to the land until that happens. That led the Kinder Morgan to sue the department. 
 
"First they filed a motion which basically asked the court to confirm their authority, under the certificate that was just issued by FERC and under the Natural Gas Act, to confirm them have authority to condemn the easement area they need for the pipeline in Otis State Forest," Assistant Attorney General Matthew Ireland, who argued the case, said. "Recognizing that this land was in Article 97, they also imparted that with a challenge to Article 97."
 
The second portion of the case included asking the court for authority to start cutting trees and hoped to have that complete by May 1. The court did, however, rule in favor of the state and stayed the decision until the end of July. 
 
"They agreed with us that this shouldn't be rushed. This is a really important issue and the parties need their time," Ireland said.
 
That stay means the company won't be able to cut trees by the May 1 deadline and the FERC certificate disallows the company to cut trees during the summer to protect migratory birds. Ireland said it was a "victory" because now the company can't cut the tree until October. 
 
"Even though the court ruled against us, the court did a really important thing. It stayed its decision until the end of July," Ireland said. "I think that was a victory for us."
 
Ireland said whether the office will appeal the ruling on the Article 97 issue or not has yet to be decided. But, residents attending the event on Thursday urged him to do so and even suggested other avenues to go through including denying a water quality standards that had been done in a New York case, arguing on the basis of public trust doctrines, or even asking to reroute the entire project.
 
"The law is pretty much against us right now. But in thinking about our next steps, one thing that is important to keep in mind is that there isn't a final judgment in this case," Ireland said. "There won't be final judgment in this case until the court takes a few more steps and those steps are in motion right now."
 
Ireland added that there is tactical reasoning behind not appealing it because right now it doesn't set a legal precedent, whereas if it is appealed and lost, it would become one. Additionally, what happens in the coming months could influence decisions. 
 
The next step in the case is a compensation proceeding. There the court will be determining the value of the easements and how much the company will have to pay the state for it. Ireland said Kinder Morgan is asking for that to begin in June and he's asking for September. 
 
Otis resident Diane Provenz said the towns will also want compensation for the impacts the construction will cause. She said Sandisfield had a compensation agreement drawn up with the company but it was withdrawn.
 
"Our roads do not meet the standards for the weight of the trucks Kinder Morgan will bring in," she said. 
 
Additionally, she said Spectacle Pond is to be drained when the company tests the pressure system after installation. Ireland, however, said the draining of the pond is minimal because the certificate requires clean water — the water is run through the system before any gas is — is dumped in uplands and can refill the water table and the pond. 
 
As for the roads, Ireland said the court won't be ruling on that in the next step but the office will be talking with the company about receiving payment for those impacts. He said the company has money planned for such payment but the state wants to make sure Kinder Morgan follows through.
 
After all of that, there is still a two month window to appeal.
 
"We haven't made a final decision on appealing this matter," Ireland said.
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