By MIRANDA WILLSON, for ecoRI News (ecori.org)
Compared to high-profile pipeline projects such as the Keystone XL oil pipeline and the Dakota Access Pipeline, the proposed Connecticut Expansion Project seems relatively innocuous at first glance, only spanning 13.4 miles in three distinct locations in New York, Massachusetts and Connecticut.
But the 3.8-mile stretch of pipeline proposed in Berkshire County, Mass., has been met with resistance from environmental activists, local and state officials, state agencies, a Native American organization and residents of Sandisfield, the town of 915 through which the pipeline would run.
Criticisms of the project include: its passing through Otis State Forest; the environmental impacts of the natural gas it would transport; a perceived lack of market need for that gas; the damaging of ceremonial stones along the route of the pipeline sacred to an Indian tribe; the process by which the Federal Energy Regulatory Committee (FERC) approved the project.
As a result of multiple legal challenges, the project is more than a year behind schedule. But as the Tennessee Gas Pipeline Co. (TGP), the subsidiary of Kinder Morgan that is developing the project, finished clearing the 30 affected acres of Otis State Forest last week, the likelihood of stopping or significantly delaying the pipeline’s construction is decreasing.
Otis State Forest had been conserved under Article 97 of the Massachusetts Constitution for decades, until Kinder Morgan sued the state in March 2016 for a 2-mile easement through the forest. Two months later, Berkshire County Superior Court ruled in favor of Kinder Morgan, arguing that the Natural Gas Act of 1938, which permits eminent domain powers to interstate pipeline companies, overruled the Massachusetts Constitution.
One activist coalition in opposition to the pipeline, Sugar Shack Alliance, protested in the forest in late April and early May of 2016 in the hopes of preventing TGP from felling trees. At least 24 members of the coalition have been arrested for attempting to block construction and charged with trespassing and disorderly conduct. Their charges were recently reduced to civil citations, according to Abby Ferla, a spokeswoman for the Sugar Shack Alliance.
Ferla said that though the group was unable to save the affected forestland, its members will continue to fight the project.
“We’re looking at a stage in our resistance where we’re shifting away from trying to protect the forest, because that ship has sailed, and refocusing our energies on keeping this pipeline out of the ground,” she said.
Ferla noted that the Sugar Shack Alliance aims to resist all new investments in fossil fuels because of the threat of climate change and what the group characterizes as negative environmental health and justice issues associated with fossil fuels.
Another organization, No Fracked Gas in Mass!, opposes the pipeline project for similar reasons. Co-founder Rosemary Wessel questioned the market need for the gas, likely being obtained via hydraulic fracturing (fracking), that the pipeline will transport to customers in Connecticut.
“This [pipeline] was based on an old projection of an increase in gas use that never manifested,” Wessel said. “As far as Connecticut goes, there hasn’t been an increased use in gas; it’s actually stalled. ... So why bring all of this destruction to the environment and put people’s lives at risk?”
FERC’s March 11, 2016 Certificate of Public Convenience and Necessity for the project, however, asserts that the need for the gas for Connecticut customers is evident and that No Fracked Gas in Mass! and another opposition group, Massachusetts PipeLine Awareness Network (MassPLAN), cited studies that “do not support the commenters’ arguments.”
Another issue brought up by project opponents is FERC’s approval process. According to Katy Eiseman, director of MassPLAN, a group of Sandisfield residents requested a rehearing of the Certificate of Public Convenience and Necessity shortly after it was issued. In response, FERC issued a tolling order to give itself more time to decide on the request.
“The effect of [the tolling order] is that because there’s not a final decision from the agency, the petitioners or landowners are not able to go to court, so they’re just stuck in this bureaucratic, regulatory limbo,” Eiseman said. “This is a common practice; FERC just doesn’t do anything.”
Sandisfield resident Jean Atwater-Williams also complained of the commission’s tolling order. Atwater-Williams is one of several Sandisfield homeowners whose property is being acquired by TGP, as part of the pipeline route in Massachusetts goes through private land.
Atwater-Williams said FERC told her that it couldn’t grant a rehearing request because it has lacked a quorum since Feb. 3, 2017, when commissioner Norman Bay stepped down. She and others, however, note that FERC nevertheless issued a “notice to proceed” with the project on April 12, despite three of its five commissioner positions were vacant.
Mary O’Driscoll, FERC’s director of media relations, said the commission’s issuing of the tolling order was done so that it could have more time to consider the landowners’ request, and that it ultimately chose not to grant the rehearing. She also noted that FERC didn’t approve the project without a quorum, but only issued a notice to proceed, and that the commission has granted some authority to other staff members due to its lack of a quorum, which she said is within its right.
But three prominent Massachusetts politicians have criticized FERC’s issuing of the notice to proceed. Senators Elizabeth Warren and Ed Markey co-signed an April 19 letter to FERC asking the commission to revoke the notice because of its lack of a quorum. Rep. Richard Neal, D-Mass., whose district includes Sandisfield, wrote a similar letter to FERC on April 25.
Another legal player in the opposition camp, the Narragansett Indian Tribal Historic Preservation Office (NITHPO), also issued FERC a request for a rehearing on the notice to proceed. Anne Marie Garti, an attorney for NITHPO, said the tribe is opposed to the project because it impacts ceremonial stone landscapes that are sacred.
She said that because FERC issued a certificate to TGP before the company had completed an archeological survey of the site, FERC violated Section 106 of the National Historic Preservation Act, which requires federal agencies to “take into account the effects of their undertakings on historic properties” and obtain public input before approving of a project.
Though TGP has insisted that it consulted with the tribe and that it will return all affected ceremonial stones after the pipeline is constructed, Garti said removing the stones destroys their religious and cultural significance.
NITHPO is currently awaiting a response from FERC on its request for a rehearing and on other papers it has filed.
TGP has asked FERC to address the claims and motions of NITHPO and MassPLAN, which the company characterized as exaggerated and unfounded. Representatives from Kinder Morgan and TGP declined to comment for this story.
Meanwhile, MassPLAN is shifting its efforts to lobby the Massachusetts Department of Environmental Protection to ensure that TGP complies with water quality and other environmental regulations.
Atwater-Williams said Sandisfield residents are unsure what, if anything, they will do next.
“At this point, we’re considering our legal options, but there aren’t many avenues left for us,” she said.
As the pipeline is expected to be in service by Nov. 1, Atwater-Williams worries about potential impacts it could have on her property, which is 270 feet from the pipeline, and on area wildlife. Though she and her husband were compensated for the portions of their property that the company acquired, she feels it’s not enough to make up for the permanent damage it has caused.
“My husband [always says], ‘I would pay them to go away,’” Atwater-Williams said. “We didn’t want the money and we didn’t need the money. We wanted to be left alone.”