Kinder Morgan’s injunction request on a natural gas pipeline passing through the southern Berkshire County town of Sandisfield goes before a judge on Friday. The path would take the pipeline through state-owned conservation land. The case could have an impact on a larger project the company is proposing, which would run through northern Massachusetts and southern New Hampshire.
Article 97 of the Massachusetts Constitution says the use of state-owned conservation land for any other purpose requires two-thirds approval of the legislature. Kinder Morgan wants the pipeline to pass through Otis State Forest, and a bill requesting this route has been tied up on Beacon Hill.
Northampton state Rep. Peter Kocot is the House chair of the committee reviewing the proposal. He says part of the delay is Kinder Morgan’s fault.
“The committee is awaiting information requests that we have made in regard to mitigation, in regard to both the town of Sandisfield and to the commonwealth as a whole,” Kocot says.
Kinder Morgan, which has been granted preliminary approval by the Federal Energy Regulatory Commission, requested the injunction last month. The company says federal laws supercede state ones, and they should be allowed to proceed. Massachusetts is fighting this. But FERC also effectively delayed the project by asking the company for more information after the injunction request — something Kocot says is also holding up the legislative review in Boston.
Whether Article 97 stands up against federal laws could also have a major impact on Kinder Morgan’s larger pipeline proposal, which would pass through similarly protected land. Former FERC Commissioner Mark Spitzer says he believes, in the end, the feds would trump Article 97.
“This statute is probably in 99 cases out of a hundred effective in preventing any sale of property in that zone,” Spitzer says. “The one case in a hundred would be this federal preemption.”
As you can imagine, pipeline opponents see it differently. Richard Kanoff is an attorney representing the Pipeline Awareness Network of the Northeast, which is fighting the larger project. He says it remains to be seen if the Sandisfield case does set a precedent, but will be keeping a close eye on what happens. Kanoff says since conservation land in Otis State Forest is protected by the state constitution, that gives it an extra shield from development.
“It makes it much more contested, much more difficult, I think, for the Federal Energy Regulatory Commission to overcome that protection,” Kanoff says. “Constitutional protections, bottom line, I think are more significant, harder to overcome.”
Kinder Morgan is also fighting the clock. It wants to start clearing trees from the land, but the federal Endangered Species Act prohibits that after March 31st. The company wants to extend the deadline to May, something U.S. Sen. Elizabeth Warren came out against this week.