A $640,000 eminent-domain settlement announced this week between the state and Tennessee Gas Pipeline Co. for Otis State Forest to build a natural gas pipeline project has left some, but not all, environmental officials concerned about the implications.
The compensation package for an easement acquired by eminent domain through Otis State Forest was announced Thursday by Attorney General Maura Healey and Energy and Environmental Affairs Secretary Matthew Beaton.
The project, approved by the Federal Energy Regulatory Commission, extends Tennessee Gas’ existing gas pipeline infrastructure in New York, Connecticut and Massachusetts.
“This settlement sets a very high bar for the value of conservation land taken by eminent domain in Massachusetts,” said Healey. “We work hard to protect conservation land across our state, and we are pleased that this settlement requires Tennessee Gas to provide important mitigation relief during the construction of the project and assure no net loss of critical conservation land in the area.”
As part of the settlement for its Connecticut Expansion Project, Tennessee Gas will pay $300,000 to the state Department of Conservation and Recreation to identify and acquire additional conservation land in the vicinity that provides ecological functions equivalent to the land impacted by the pipeline, according to the state attorney general’s office.
Another $300,000 will go toward mitigation and improvements to Otis State Forest, including $60,000 for recreational improvements. The remaining $40,000 is for the fair market value of pipeline easements.
Jane Winn, executive director of Berkshire Environmental Action Team, said she’s “extremely concerned” about the settlement, and that it “violates completely” Article 97, a Massachusetts Constitutional provision that prevents public conservation land from being sold for development without approval from two-thirds of the state Legislature.
The Legislature’s Committee on State Administration and Regulatory Oversight never even made a recommendation on whether that approval should have been granted, as it sought more details from the company about proposed mitigation agreements.
“We should have the Legislature deciding, if they aren’t going to do their two-thirds vote to release it, they should at least have a say in how much money we get for it,” Winn said of the process, which was short-circuited by a Berkshire Superior Court decision last summer that said the National Gas Act would pre-empt the state Constitutional protection.
“If they didn’t vote, it remains protected,” Winn said. “FERC should have made it a requirement of their certificate that they go through the Article 97 process. They failed us.”
She criticized the state’s “back-door deal,” adding, “You just can’t trade one precious piece of land for another. They both should be protected. It’s just wrong.”
But she said she doesn’t believe that the May court decision set a strong precedent against Article 97 protection, agreed to by Leigh Youngblood of Mount Grace Land Conservation Trust.
The Federal Energy Regulatory Commission’s approval of the project in March, leaving the Article 97 issue up the courts, was a complicating issue, said Youngblood.
“Article 97 is still a powerful tool for defending public land,” she said. If the project through Otis had been for a new pipeline, instead of following an existing pipeline alignment, she said, “That would have made a big difference.”
The Otis State Forest property had been purchased for $900,000 by from Massachusetts Audubon Society in 2007.
“We support the settlement the office of Attorney General Healey has reached with Tennessee Gas Pipeline,” Mass Audubon spokesman Michael P. O’Connor said Friday, “and are particularly pleased that the financial mitigation package will not only directly address the impacts of the new pipeline on Otis State Forest, but allow DCR to acquire additional ecologically important land to help maintain the region’s rich biodiversity.”
State Rep. William “Smitty” Pignatelli, D-Lenox, who opposed the transfer of state forest land, said Friday, “I applaud the attorney general going to bat for the state,” and he noted that there are “many more layers in getting permits” for the project.
These include, according to PipeLine Awareness Network President Kathryn Eiseman, Clean Water Act certification, where an appeal is pending before the state Department of Environmental Protection and the Army Corps of Engineers has not issued a section water quality permit. There are also outstanding tribal issues related to the National Historic Preservation Act.
Pignatelli said he’s “disappointed” that there’s nothing in the agreement that supports the town of Sandisfield and a million-dollar mitigation agreement by the company from which it later backed out.
“We will continue to lobby for them to negotiate with Sandisfield. The fact that they reneged on a written agreement with the town disappoints me.”
The announcement by the attorney general’s office said Tennessee Gas is required to pay an estimated $640,000 for environmental monitors and other mitigation, bringing the total value of the settlement to more than $1.2 million. But Winn said, “Most of that’s in things that the company is being required to do under the permits anyway, and they’re getting to take credit for it.”
You can reach Richie Davis at rdavis@recorder.com
or 413-772-0261, ext. 269