Article 97 of the Massachusetts Constitution has been seen by some as an impenetrable defense against unwelcome natural gas pipeline proposals. Monday, however, a sizeable chink in this armor may have emerged in a Berkshire County courtroom.
In a ruling that shook many pipeline foes, Superior Court Judge John A. Agostini ruled that Tennessee Gas Pipeline Co. can continue with tree clearing for its Connecticut Expansion project in the southern Berkshires, a route that will travel through Otis State Forest and have additional impacts on other state-owned land.
Tennessee Gas, whose parent company is Kinder Morgan, had sought a court order to access the land after winning Federal Energy Regulatory Commission approval in March. Opponents had hoped that Article 97, which requires legislative approval for developing state-protected public lands, would supercede the FERC decision. But the Berkshire judge disagreed.
“Considering the judicial history and purposes of the (federal National Gas Act),” Agostini wrote, “I conclude that Article 97 of the Massachusetts Constitution violates and conflicts with the Supremacy Clause of the United States Constitution and, therefore, is unavailable to hinder or prevent the project.”
Agostini based his opinion on the U.S. Natural Gas Act of 1938, providing power of eminent domain for the interstate transportation, sale and resale of natural gas, and the Supremacy Clause of Article VI of the U.S. Constitution, allowing Congress to pre-empt state or local law.
As to the Commonwealth’s argument that Article 97 supersedes FERC, as argued by the state attorney general’s office, Agostini wrote, “the Commonwealth has not cited a single case that would prevent the preemption regarding a subject that has historically and necessarily been within the executive province of the federal government, such as NGA.”
He goes on to say, “What is particularly troubling about the Commonwealth’s argument is the ease at which a state has the ability to stop a federal interstate project … by simply invoking a state constitutional provision geared to protect the environment. If accepted by the appellate courts, other states would be well advised to adopt this road to confederation … I strongly suspect that this is a road that the appellate courts will not take.”
This wasn’t the way environmental and anti-pipeline groups, lawmakers and Attorney General Maura Healey wanted the case to go. But Agostini, in staying his ruling until July 29, provides them with valuable time that can be used in different ways — ranging from the Legislature capitulating to the project by allowing an easement under Article 97 to appealing the ruling. The attorney general’s office has stated its considering its options in deciding what next.
The judge doesn’t let Tennessee Gas off the hook.
“… The certificate (from FERC) does not give Tennessee an unrestrained right to ignore the Commonwealth,” Agostini wrote. “Instead the Certificate expressly requires Tennessee to make a good faith, reasonable effort to ‘cooperate with state and local agencies regarding the location of pipeline facilities, environmental mitigation measures and construction procedures.’”
And Tennessee Gas still needs some additional federal and state approvals for this 13-mile stretch of a pipeline originally envisioned as a way to transport “fracked” natural gas from Pennsylvania to the Northeast. While the Northeast Energy Direct pipeline’s overseers recently announced they were suspending the project, anti-pipeline forces worry that, if it acquires a clear path through the state lands, it might resurface at some point.
The ruling is clearly a setback for those pipeline foes. But the fight is not over.
The state, in putting the interests of its citizens first, needs to take the next steps.
We call on lawmakers to vote against an easement for Tennessee Gas before the end of the legislative session in July. And the attorney general should appeal the ruling all the way to its potential end-game in the U.S. Supreme Court.