New England Public Radio

Judge Signals He’ll Approve Compensation For Pipeline Land In Sandisfield

A Berkshire Superior Court judge Monday said he plans to sign off on a deal to give Kinder Morgan a piece of Otis State Forest in Sandisfield. The land would be used for the company’s planned New York to Connecticut pipeline.

Kinder Morgan will pay the state $640,000 for the land under the settlement reached in December. The judge ruled in the company’s favor last spring, saying federal law trumped a state constitutional article designed to protect conservation land. That touched off a months-long battle over compensation.

Prior to Monday’s hearing, dozens of protesters staged what was billed as a funeral for Otis State Forest across from the Pittsfield court house.

“Sadly, the Commonwealth of Massachusetts has not adequately defended this constitutionally protected land,” said Jean Atwater-Williams, a Sandisfield resident. “It has traded the public trust for pieces of silver.”

The project still faces appeals by citizens groups at the state and federal levels.

Kinder Morgan Still Has Hurdles To Clear For Sandisfield Pipeline

After its legal victory over the Massachusetts Attorney General’s office, Kinder Morgan still needs to get sign-offs from state and federal officials. That’s before it can start work on its New York to Connecticut natural gas pipeline. The project will pass through southern Berkshire County.

In May, Kinder Morgan was granted an injunction, allowing it to route the pipeline through Otis State Forest in Sandisfield, Massachusetts. A Berkshire Superior Court judge issued a stay in the case, which expires Friday.

The Massachusetts Attorney General’s office could still appeal the ruling, but the time frame for doing that doesn’t start until the state and Kinder Morgan agree on compensation for the land, finalizing the judgement.

A company spokesperson says it still needs various permits from Massachusetts and Connecticut as well as federal approvals before tree clearing can begin. He wouldn’t say if preliminary work, such as land surveys might start once the stay runs out.

Kinder Morgan Wins Injunction Request To Build Pipeline Through Sandisfield

A Berkshire Superior Court judge has granted Kinder Morgan an injunction, allowing it to go forward with a natural gas pipeline in Sandisfield, Mass., on its way to Connecticut. But the judge did issue conditions.

Judge John Agostini wrote that federal laws give Kinder Morgan the right to build the pipeline in Otis State Forest. Massachusetts law protects state-owned conservation land, but the judge ruled Kinder Morgan would suffer irreparable financial harm if they aren’t allowed to go forward with the project.

Agostini did issue two conditions: The injunction is stayed until late July to give the legislature time to complete its review, and in case state Attorney General Maura Healey appeals. Kinder Morgan also has to put up a half a million dollar bond until it’s determined exactly how much money Kinder Morgan owes the state for the land.

In a statement, a spokesperson for Healey expressed disappointment in the judge’s decision, but said the stay “recogniz[es] the critical role of our state Legislature in determining the status of conservation land and allowing it the time to act.”

The spokesperson says the attorney general’s office is reviewing the decision and “considering our options moving forward.”

Judge Hears Arguments Over Sandisfield Pipeline Injunction

A Berkshire Superior Court judge heard arguments Friday in Pittsfield, Mass., on an injunction request from pipeline company Kinder Morgan. The state is fighting a a natural gas pipeline The company wants to build from New York to Connecticut. It would run through conservation land in southern Berkshire County owned by the state.

Judge John Agostini warned pipeline protesters,  the courtroom was not the place to air their opinions.

“We appreciate the passion that you bring to any issue that is before the court,” Agostini says. “You should not apologize for your passion.”

Kinder Morgan attorneys stuck to their argument that the preliminary federal approval for the project, already granted, gives them the ability to start work in Otis State Forest in Sandisfield. The Massachusetts Attorney General’s office countered that Article 97 of the state constitution, which protects state conservation land, still applies. If Kinder Morgan is not granted an injunction, then the company will need two-thirds approval from the state legislature unless they take the case to a higher court . Judge Agostini took the matter under advisement.

Sandisfield Pipeline Case Could Impact Larger Project

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.

Mass. AG Files Opposition on Pipeline Injunction Request

The Massachusetts Attorney General’s office has filed its opposition to an injunction request by Kinder Morgan. The company wants to build a natural gas pipeline, which would run through state-owned conservation land in southern Berkshire County.

Kinder Morgan is seeking to sidestep a Massachusetts law requiring legislative approval before state conservation land can be used by private entities. In its 29-page opposition, the attorney general’s office says the injunction should not be granted because the matter is still before the legislature, the state law isn’t specifically preempted by federal law and because the federal approval process isn’t complete.

The company had been granted preliminary approval by the Federal Energy Regulatory Commission for the project, but shortly after the injunction was filed, FERC tapped the breaks on the project. The agency requested more information from Kinder Morgan on the necessary easements and environmental approvals it needs to go forward, some of which would have to come from the state.

Kinder Morgan wants to begin clearing trees from the pipeline’s path in Otis State Forest in Sandisfield. The matter is scheduled to go before a judge in Pittsfield this week.

The outcome of this case could impact a separate project from Kinder Morgan, its pipeline proposal through northern Massachusetts and southern New Hampshire.