Pipeline opponents on Thursday were celebrating the announcement that Tennessee Gas Pipeline Co.’s 416-mile Northeast Energy Direct project has been halted by TGP parent Kinder Morgan, which said it hadn’t enough commitments from prospective customers.
But as they prepared to celebrate Thursday night at a protest cabin built along the NED route in Ashfield, environmental groups were also trying to assure the “final nails in the coffin” were in place, and also were looking ahead to what comes next in the battle not only against the controversial pipeline itself, but also against the potential for similar projects in the future.
“It makes sense to be proactive,” said Kathryn Eiseman, director of Massachusetts PipeLine Awareness Network and president of PipeLine Awareness Network for the Northeast Inc.
And whether a wooden stake is finally driven into the NED project’s heart, Eiseman and others point to underlying legal questions about whether the state Constitution trumps FERC pipeline approvals, whether the state should require electricity consumers to pay for pipeline development and about what kind of clean energy course the state wants to chart for itself.
Eiseman wrote Thursday morning to the state Department of Public Utilities to request “immediate denial” of TGP’s three requests for survey access to land along the project’s route in light of the company’s announcement it would suspend “further work and expenditures” on NED. She said that “there are currently neither sufficient volumes, nor a reasonable expectation of securing them, to proceed with the project as it is currently configured.”
Eiseman said that she would like to see all applications and petitions at the federal and state levels “withdrawn and “rendered null and void.”
“There’s still work to be done on NED, to make sure all the nails are in the coffin,” she said. “It’s still kicking. I want it signed, sealed and delivered.”
The PLAN organizations still have their work cut out for them, Eiseman said, work that will affect people elsewhere in Massachusetts, as well as in New York, Pennsylvania, New Hampshire and elsewhere.
“We built on the work that was done in New York” she said, pointing to other projects like the Algonquin Incremental Market project, which critics point out would run within a few hundred feet of the Indian Point nuclear plant in New York. “Each project has a new layer of opposition to it.”
Kinder Morgan spokesman Richard Wheatley said Thursday that as far as the company’s application to the Federal Energy Regulatory Commission for a Certificate of Convenience and Necessity is concerned, “We are taking under advisement how best to proceed, consistent with our contracts.”
But Boston attorney Richard Kanoff, who has been representing the Town of Montague on a pipeline petition before the DPU, as well as other actions to halt the project, said, “FERC is definitely one of the elephants in the room with respect to this project,” and said that he would expect the company to file for a withdrawal at the federal regulatory agency as well as to terminate all cases before the state DPU.
Meanwhile, court appeals of the DPU’s decision not to allow PLAN to become a full intervenor in cases by Berkshire Gas Co. and other gas distribution companies on long-term agreement to contract for the NED gas will continue — even though the project itself has been halted, because “they raise legal issues that are germane to future cases, said Kanoff, who is representing the anti-pipeline organization.
In Wednesday’s decision, Kanoff said, Kinder Morgan and its investors “caught up with the realities” that there was no need in the market for its project, given the alternatives, “and they pulled the plug.”
Rosemary Wessel of No Fracked Gas in Mass. said, “When I first heard about plans to suspend the project, it took my breath away,” but she still harbors fears that Kinder Morgan, “which has been so devious … may be planning a bait-and-switch.”
No Fracked Gas in Mass. will remain involved in TGP’s Connecticut Expansion Project, on which the company still plans to proceed, pending a Berkshire Superior Court decision that’s due any day. The organization, with 700 people on its mailing list, plans to remain in continuing DPU proceedings by Eversource and National Grid on whether to allow tariffs on electricity users to pay for the Spectra’s Access Northeast pipeline.
“We’ve been engaging people on all fronts, including the omnibus energy bill and whether there’ll be pro-pipeline language on that,” said Wessel, referring to legislation in the works that would guide the state’s future energy policies and practices.
“There’s still plenty of work to be done,” she said.
Rep. Patricia Haddad, D-Somerset, has filed legislation that would codify the same kind of electric ratepayer tariff the DPU has approved to pay for gas pipeline construction to be included in a House energy reform package that many, like Wessel, say needs to emphasize a continued state commitment to renewable energy sources and energy efficiency.
Rep. Stephen Kulik, D-Worthington, has called House leadership to reject inclusion of that kind of fossil fuel tariff in an energy reform package.
Meanwhile, the state Senate Committee on Global Warming and Climate Change is going ahead with a planned May 3 hearing at the Statehouse about the NED project and how it relates to the state’s initiative on climate change.
Meanwhile the Conservation Law Foundation and GDF-Suez are awaiting May 5 Supreme Judicial Court hearing on an appeal of the DPU’s decision last year to allow tariffs.
While it has been left to pipeline companies to assume the financial risk for building new infrastructure, said CLF spokesman Josh Block, “what they’re trying to do is put consumers’ money on the line for their pipeline, a pipeline that it’s clear is unnecessary for the energy market. That’s why this is so problematic.”
Because the Spectra pipeline applications are still pending, and others may come, he said, the issue remains relevant.
In a statement issued Wednesday by Attorney General Maura Healey, who had commissioned a study to look into the need for new pipeline infrastructure, she said, “In its decision to suspend further work on the NED pipeline, Kinder Morgan recognized what has been clear for some time, that the project was too big and too costly for Massachusetts ratepayers. Our office has consistently maintained that electric ratepayers should not foot the bill for additional pipelines. I hope this announcement helps refocus and secure our energy future where it needs to be, with investments in clean and cost-effective energy resources.”
Although NED appears to be a dead issue, Wessel said, “We need to push for a clean energy future, and we don’t want other communities to face what the NED communities have faced.”
Her organization is still fighting the AIM Pipeline’s West Roxbury expansion and Spectra’s Access Northeast project.
“We’ve been involved in this along, also pushing for clean energy reforms so that the system favors clean energy over fossil fuel expansion. It doesn’t just impact our neighborhood when a pipeline comes through; it impacts the climate and the whole regional economy. We want to make sure we keep going in the right direction. It was never about ‘my backyard.’ We’re not fighting this because it was impacting us directly. We’re fighting it because it’s the wrong direction for us to go.”
Wessel said, “It really shocked me that it came this close. This really was an eye-opener for all of us, to see that a state we thought was heading so clearly in a clean energy direction, all off a sudden there’s a huge fossil fuel project slated. Not only that this was possible, but what all the pieces were underneath in the legislative sense, and in our energy policy that would allow this to happen.”
Particularly “alarming,” she said, was learning two years ago that the six New England governors had been working behind the scenes to call for tariffs to build new gas pipelines and transmission lines.
If the tariff issue is “still kicking,” in Eiseman’s words, so is the Article 97 question.
Article 97 of the Mass. Constitution requires a vote of the Legislature to revoke state-sanctioned protection of conservation lands. Pipeline foes had argued this pre-empts federal approval of a pipeline. Pipeline developers take the opposite legal stand.
“After a brief moment of euphoria, the emails started flying saying, ‘Wait a minute: there are still things we have to be looking at,’” said Richard Hubbard, executive director of Franklin Land Trust. “The Article 97 issue still is really huge. I would hope the attorney general would be willing to take that fight all the way to the Supreme Court if necessary, because it’s such an important fight. Maybe that’s what contributed in part to Kinder Morgan’s decision at this point. They were looking at months and months, potentially, of costs and time to get this thing done.”
The Shelburne Falls-based land trust is part of a legal coalition whose attorney, Vincent DeVito, had written to FERC last month charging that the company had provided “inconsistent data regarding the amount of gas shipments it will deliver based on agreements with shippers, and implied that new contracts were signed when that was apparently not the case,” he said Wednesday.
Leigh Youngblood, executive director of Mount Grace Land Conservation Trust in Athol, said the Berkshire court case over whether TGP should be prevented from building its Connecticut Expansion looping project through Otis State Forest could affect whether the company decides to revisit the NED pipeline.
For the company, the question is an open-and-shut case of federal preemption authority under the National Gas Act; for the state — which is being sued by the company — the constitutional provision is a matter of state sovereignty over a provision of its constitution to guarantee its citizens access to clean air and water.
A determination in the issue would not only affect conservation properties along Spectra’s Access Northeast route in eastern Massachusetts, Youngblood said, but speaks to the integrity of the constitutional provision itself.
“If it goes poorly, that could mean a green light (for pipeline development) because it means there are fewer obstacles,” Youngblood said. “Kinder Morgan is doing a cost-benefit analysis, and if Article 97 (enforcement) is diminished, that might be relevant to future pipelines. We have to pay attention to that. It’s not over.”
You can reach Richie Davis at: rdavis@recorder.com
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