From my many conversations, I see that there is great confusion out there regarding “the pipeline”. Let me clarify names and pipelines.
Kinder Morgan describes itself as “the largest energy infrastructure company in North America”. They have pipelines that transport, among other things, crude oil and natural gas as well as other products. Kinder Morgan has a subsidiary company, the Tennessee Gas Pipeline Company.
It gets more complicated—we are not just talking about one pipeline when we talk about “the pipeline”. In the Berkshires, there are two pipelines of concern, both of the Tennessee Gas Pipeline Company. For this reason, calling either pipeline “the pipeline,” or “the Kinder Morgan pipeline” or “The Tennessee Gas pipeline” without some further modification (as is commonly done) is creating all types of confusion.
NORTHEAST ENERGY DIRECT PIPELINE
First, there are plans for an entirely new pipeline that crosses Massachusetts. This forms the Northeast Energy Direct Project. It is (hopefully “was”) planned to go through Richmond, Lenox, the very southeast corner of Pittsfield, Washington, Dalton, Hinsdale, Peru, Windsor, Plainfield, Ashfield, and Conroy. The Berkshire Environmental Team (BEAT) has stated their plans have changed and switched from Richmond to Hancock, and may change again. According to BEAT, “The proposed pipeline would cut through forests and across waterways and wetlands, would have a diameter of from 30 to 36 inches, and would carry approximately 2.2 billion cubic feet of natural gas per day under a pressure of up to 1,460 pounds per square inch. The project is proposed to come online in November of 2018.”
Literally as I was first writing this piece, a press release came out from Kinder Morgan that the Northeast Energy Direct Project would be suspended. In short, there were not enough commitments to buy their dirty, fracked gas. Whether this is just posturing to get more commitments is anybody’s guess, and they have already made changes in their plans before. The Berkshire Edge reported such a change in an August 24, 2015 titled, “The Kinder Morgan Pipeline: Down(Sized) but not out.”
Who knows if the wicked witch is dead? Nobody. Whether it is the cleanup of the Housatonic or building a pipeline, or any other large construction project, change seems to be the only constant. I have read estimates as high as $80 million currently spent on the project, although media relations of Kinder Morgan refuse to confirm or deny this number to indicate what the “real” amount already expended is. Large companies do not typically just walk away from large investments.
When I spoke to Richard Wheatley, media spokesperson for Kinder Morgan, in a phone call on Thursday, April 21, 2016 (the day after the press release), he stated that the current incarnation is dead but made a general statement that Kinder Morgan will try to meet the needs of its customer. In more than one phone call, the second being Thursday, April 28, 2016, Mr. Wheatley has pointed out that the April 20, 2016 press statement read:
“TGP has operated in New England for more than 60 years and remains committed to meeting the critical need for constructing additional natural gas infrastructure in the region. Although we have suspended work and further expenditures on the NED project, TGP will continue to work with customers to explore alternative solutions to address their needs, particularly local distribution companies that are unable to fully serve consumers and businesses in their areas because of the lack of access to abundant, low-cost domestic natural gas.”
What “suspend work” and “continue to work with customers to explore alternative solutions to address their needs” means is anybody’s guess. Does it mean that the Northeast Energy Direct Pipeline will come back in some other variant as a vampire project? It could very well be so. Moreover, Kinder Morgan made clear their reason for suspension in the very first sentence of the press release: “As a result of inadequate capacity commitments from prospective customers, Kinder Morgan, Inc., and its subsidiary, Tennessee Gas Pipeline Company, have suspended further work and expenditures on the Northeast Energy Direct project.” Simply put, if there were enough customers committed to buying the gas, they would have continued building the pipeline—this very well may be posturing to get such purchasing commitments. Vigilance is still required.
THE MASSACHUSETTS LOOP OF THE CONNECTICUT EXPANSION PROJECT
But there is another pipeline other than the Northeast Energy Direct Pipeline, which is not covered by the press release regarding suspension of “the pipeline”. I confirmed this with the telephone conversation I had with Mr. Richard Wheatley on April 21, 2016. Plans for this pipeline continue.
I should add additional commentary. There have been statements by local media outlets and e-mails stating that the Massachusetts Loop of the Connecticut Expansion Project is on hold, some even calling it “dead.” While it is technically true that there has been a delay, it has been court-created. This court-caused delay is common in projects of this nature which have such a large environmental impact. The court-created delay of the Massachusetts Loop of the Connecticut Expansion Project is much different than the suspension of the other pipeline, the Northeast Energy Direct Pipeline. The Northeast Energy Direct Pipeline was suspended due to a lack of potential customer commitment.
According to the Federal Energy Regulatory Commission, it is referred to as the “Connecticut Expansion Project”; a project also of the Tennessee Gas Pipeline Company. This falls under Federal Energy Regulation Commission (FERC) Docket # CP14-529, which describes it as “approximately 3.8 miles of 36-inch-diameter pipeline loop near the Town of Sandisfield, in Berkshire County, Massachusetts (referred to as the Massachusetts Loop).” This is properly called “the Massachusetts Loop of the Connecticut Expansion Project”. This pipeline is also owned by Tennessee Gas, a Kinder Morgan subsidiary. Because people refer to both pipelines as “the Tennessee Gas pipeline” or the “Kinder Morgan pipeline”, there are all types of confusion. I am sure many might be confused that this “Massachusetts loop” that goes through Sandisfield was also suspended—it is not.
According to BEAT, “This project includes adding a third pipeline alongside two existing pipelines in Sandisfield. The pipes for this project would be stored during construction on a farm field, which is also rare species habitat, in Tyringham.” It would involve a larger swath of land and greater environmental degradation. The Berkshire Eagle reports that “the state spent $5.2 million in 2007 to add 900 pristine acres to Otis State Forest, including Spectacle Pond Farm and 15 acres of 400-year-old eastern hemlock old-growth forest”. This land would be affected.
The lawsuit in Berkshire Superior Court, Tennessee Gas Company v. Six Acres of Land, heard on April 16th, involves the Massachusetts Loop of the Connecticut Expansion Project (and does not concern the Northeast Energy Direct Pipeline). The Tennessee Gas Pipeline Co. has sued seeking permanent and temporary easements through the Otis State Forest through Sandisfield. One of the major issues is whether the federal Natural Gas Act preempts Article 97 of the Massachusetts Constitution. Under the Natural Gas Act of 1938, the Federal Energy Regulatory Commission (“FERC”) regulates interstate natural gas transmission lines.
Whether state law is preempted by federal law is a complicated issue outside the ken of ordinary citizens (I don’t hold myself out to be an expert), but I can throw out a few observations. Let me explain federal preemption the way it was explained to me. A valid federal law, even a mere “tiny” regulation or ruling passed by a regulatory agency, can preempt even a “big” state law, even something as a big as a provision in a state’s constitution. This is because the Supremacy Clause of the United States Constitution provides that the United States Constitution is the supreme law of the land. Thus, if a federal agency enacts regulations or renders rulings under powers granted to it by a valid federal statute passed by Congress (through valid powers of Congress as provided in the US Constitution), under certain circumstances, the state law is considered too incompatible with the federal law and is thus “preempted” from having effect. While this is a mouthful, it actually is the undisputed, easy part to tell you. Simply put, federal law ranks supreme over state law when there is a conflict.
The hard part is determining what state laws are preempted by federal law. In layperson’s terms, it is a measure of how incompatible the state law is with the federal law. Courts often ask whether Congress expressly stated a federal law is to trump state law, or if not expressly stated, whether preemption is somehow implied because it is impossible to comply with both sets of laws. There is even something called “field preemption,” where the party challenging the state law must show that Congress intended to fully occupy a field and leave no room for even supplemental state regulation. Tennessee Gas argues that the regulation of interstate commerce is usually a federal issue and calls for preemption. The Massachusetts Attorney General argues that regulation of land usage and protection of a state’s own lands, especially conservation lands, are paradigmatic examples of something traditionally regulated by the states. There are a bunch of cases that specifically deal with pipelines and federal preemption.
Federal preemption is an area of law with all types of balancing test and rules, that often differ from court to court and the judicial inclinations of who is sitting on the bench. Courts generally disfavor preemption absent an explicit state by Congress to invalidate state laws, and are usually cautious to avoid nullifying laws typically in the domain of state regulation such as regulation of the lands and environment. Moreover, if there is a way to avoid ignoring the state law, such as not going through conservation land, courts become more disinclined to allow a federal law to preempt a state law, especially given something as hallowed as a state’s constitution.
THE ROLE OF A STATE SENATOR
I am trying to be educated on ways a state senator can assist in the PCB cleanup of the Housatonic River. I have asked many people, and all have told me there is really nothing to vote on, and that your role would be that of the bully pulpit. I would be willing to sit down and have coffee with anyone who has an idea how a state senator can help from the state legislative angle.
But there are actual things a state senator would do regarding both pipelines. Most importantly, should the Commonwealth ultimately succeed in Tennessee Gas Company v. Six Acres of Land, Article 97 of the Massachusetts state constitution would not be preempted and be a force with which to reckon. We would want a state senator that has no hesitation saying “no” to the two pipelines. As the Farmland Information Center correctly understands it, “Article 97 was intended to be a legislative ‘check’ to ensure that lands acquired for conservation purposes were not converted to other inconsistent uses”. Just such an inconsistent use would be natural gas pipeline transporting fracked gas.
Article 97 was approved by the voters in 1997. Under Article 97, conservation and/or recreation lands may only be taken for non-conservation purposes by a 2/3 vote of both branches of the legislature. But it does not end with Article 97—there are other actual bills a state senator would vote on regarding both pipelines. For instance, House Bill 3690 (H. 3690) concerns “An Act relative to the conveyance of an easement in the town of Sandisfield, Massachusetts”. The bill is “By Mr. Bradley of Hingham (Plymouth 3rd Dist.), a petition (subject to Joint Rule 12) of Garrett J. Bradley for legislation to authorized the commissioner of Capital Asset Management and Maintenance to convey to the Tennessee Gas Pipeline Company, L.L.C. certain permanent subsurface and surface easements located in the town of Sandisfield for pipeline purposes.” The pun fully intended, there may even be more legislation down the pipe. We should have a state senator with strong environmental credentials.
MY OPPOSITION TO BOTH PIPELINES
Why do I oppose both pipelines? For starters, they transport fracked gas. Fracked gas has wreaked havoc on the environment because of the chemicals injected into the groundwater and its potential to ruin a water supply. Pipelines can be dangerous. In Sandisfield in 1981, large parts of Sandisfield had to be evacuated due to a leak. And pipelines leak methane, which traps 84x more heat than carbon dioxide, increasing global warming. This is not to mention the disruption of the ecosystem upon installation.
MY OPPONENTS INITIAL FAILURE TO OPPOSE “THE PIPELINE”
It was political insider wisdom that despite all the lawn signs saying “lower my energy bill, build the pipeline,” that the Democratic candidates for state senate would take the progressive, green position. That is why I nearly fell out of my chair when I went to the WAMC website and listened to the March 2, 2016 interview of Jim Levulis, “Another Democrat Enters Western Mass. State Senate Race.” At 1:10 Mr. Levulis states, “Harrington has said she is undecided on the proposed Northeast Energy Direct Pipeline that will run through the region.” At 3:05 Mr. Levulis reports, “[Adams Hinds] said the pipeline is a big issue, but did not take a stance for or against it.”
When I took out nomination papers (I have not formerly announced), I was interviewed by Mr. Levulis, resulting in the WAMC piece, “More Contenders in Western Mass. Senate Race” which aired March 31st, and is available online for listening. Boy, did they sing a different tune.
All of a sudden, there was a Bernie Sanders progressive in the race. I had recently been awarded a “Hero of the Ocean” award by the Massachusetts Senate for my efforts to ban Styrofoam and single-use plastic bags. The award was offered by Sen. Ben Downing. Now both candidates were opposed to the pipeline. I had moved them to the left, and they were me-too candidates.
I am a Bernie Sanders progressive and share his stance against fracked gas. I was instrumental in leading the charge to ban Styrofoam in Pittsfield (single-use plastic bags is still a fight). I inspired Brad Verter to lead the fight to ban Styrofoam and single-use plastic bags in Williamstown. Both of my opponents steadfastly deny that I pulled them to the left, but the evidence shows otherwise. Just like in the national Democratic race for President, my stance pulled them to the left. Regardless, their well-documented reluctance to oppose the pipeline is of tremendous concern.
In the April 20, 2016 WAMC piece, “Pipeline Becomes An Early Point Of Contention In Mass. Senate Race,” Adams Hinds says that his failure to initially come out against the pipeline and only doing so after I took out nomination papers “has absolutely no connection to my policy positions.” Adam Hinds took his position “in March”. Most would view it much differently. The evidence is quite strong that he reacted to my presence in the race.
Andrea Harrington said, “I was opposed to the pipeline as a private citizen living in Richmond where the pipeline was going to be going through, and I’m opposed to the pipeline as a candidate for state senate.” She added, “I’ve been opposed to the pipeline, always.” She makes it sound as if she was never undecided, and this is just not so.
I am humble enough to admit that there are dozens upon dozens of issues for which, if asked, I would not have an immediate answer. The issues are numerous and complicated. I need your help to continue to learn more about these issues, and that’s why I like to hear what others have to say.
But how could you not have a position on the pipeline? One local journalist I spoke to called it the most important issue facing the region, and all regard it as preeminent issue. There are lawn signs all over for and against the pipeline. (The numerous pro-pipeline signs put them on the fence).
It was inexcusable to enter the race and not have a position on such an important issue. Having a position on one of the most prominent, leading issues of the day that you would actually vote on is a requirement of a candidate few would dispute. This would be true regardless of the issue, absent some unusual circumstances not present here of some unknown variables. Here all the information was out there to form an opinion. There should have been one.
I respectfully submit to you the voter, that you want someone as state senator with fire in his belly and is firmly opposed to both pipelines so that they fight with conviction and passion. The tepid resignation and me-tooism that “perhaps the pipeline is a bad idea”, reached after a period of failing to take a stand is not the fighter for the environment you want. But even if you are for the pipeline or don’t have a strong position, do you really want a candidate that entered the race without a position on one of the most pressing issues of the day? And do you really want a candidate that is that weak on the environment they would not initially say no to transporting that dirty fracked gas?
To read more about my efforts to ban Styrofoam and single-use plastic bags, go to: https://berkshiregreen.wordpress.com/
At this website, on the homepage, there are links to many columns I wrote and media stories about me and my environmental efforts.