… In four easy steps
In 2014, natural gas giant Kinder Morgan came to Sandisfield, a small town in Western Mass, to propose its Connecticut Expansion Project (CT Expansion), an approximately 13-mile loop through Albany County (New York), Hartford County (Connecticut), and Berkshire and Hampden counties (Massachusetts).
In the process, the Houston-based behemoth made pipe-dream promises to be positive community partners to its neighbors and abutters in the Berkshires. According to the company’s website, Kinder Morgan is “committed to employing sustainable business practices, conducting ourselves in an ethical and responsible manner, and complying with applicable laws, rules and regulations.” The pledge continues: “Our Code of Business Conduct and Ethics outlines our commitment to honesty, integrity and respect, and we expect our employees to uphold these standards at work every day.”
As noted by the many activists who have been protesting the Kinder Morgan pipeline, however, as well as by politicians at all levels, including US Sen. Elizabeth Warren, the permitting process and operation behind the $93 million CT Expansion have left much to be desired — especially by the surrounding community. Here’s a look at how the story has unfolded in the past three years, mostly in the words of those on the front lines.
STEP 1: THE SETUP
At the beginning of their courtship, in meeting with the people who will be impacted by their New England project, Kinder Morgan representatives presented themselves as stewards of communities they disrupt. In May 2014, spokespeople from the gas company and a multinational engineering firm slated to work on the project answered questions for members of the public and the Sandisfield Board of Selectmen. Notably, a rep from the Los Angeles-based AECOM stated, on behalf of his company and Kinder Morgan, “This isn’t a vacuum … We want to be a good corporate citizen way above and beyond what we are obligated to do.”
Logistics are a major issue for the tiny town of Sandisfield. So from the get-go, officials began a months-long process of negotiating a road use agreement and a community benefits agreement. “Our roads are fragile,” says Alice Boyd, who chairs the Sandisfield Board of Selectmen. She adds: “There are many other issues. We have stone walls that are going to be disturbed and need to be replaced … We wanted to avoid as much impact as possible. We are very concerned because we have such a limited budget, [$300,000] a year if we are lucky, to put into our roads, [which are] all crying out for help. What are we going to do to recover?”
Responding to such concerns, during the aforementioned question and answer session in May 2014, transcripts show that another person speaking on behalf of Kinder Morgan stated, “We will work out some type of road usage agreement with the town to specifically identify those routes, and we’ll also be responsible for repairing the roads and any impact related to construction.”
According to Boyd, the company also promised to pay for legal fees that Sandisfield has accrued in working on agreements with the company. With an annual town legal budget of $10,000, the selectwoman says they needed all the help they could get.
STEP 2: BE AGGRESSIVE
The extractive policies of companies like Kinder Morgan, the largest pipeline company in the United States, appear to rely heavily on the disregard of personal property rights, states’ rights, and even the law in favor of eminent domain and federal government overreach. In one of many examples of the company’s past transgressions, last year the Pennsylvania Department of Environmental Protection fined Kinder Morgan more than $500,000 for violations related to an ethanol spill along the Delaware River.
In Western Mass, in order to obtain permission to construct a 2-mile expansion loop in Otis State Forest to serve the needs of utility companies with which it is working, Kinder Morgan had to bypass a critical article of the Massachusetts State Constitution that states that conservation land “shall not be used for other purposes or otherwise disposed of except by laws enacted by two thirds vote … of each branch of the general court.”
In other words, Mass lawmakers could have voted on whether the gas company should be able to skirt the state Constitution, while the governor could have pushed them. But none of that happened. Instead, they left it to the courts, effectively acting via inaction.
“Under the law, the land remains protected, unless there is an affirmative vote to change the use of the land, and that did not happen,” says Katy Eiseman, director of the grassroots Massachusetts Pipeline Awareness Network (MassPLAN). Eiseman continues: “Gov. [Charlie] Baker and the administration should be held accountable … The attorney general’s office did not appeal … The issue is the federal pre-emption of the Natural Gas Act that has broad powers. It is hard to push back against, but they [Healey and Baker] didn’t even try.”
With Beacon Hill out of the picture, to complete its unconventional move into Mass, last year Kinder Morgan lawyers brought a suit in Berkshire Superior Court contending that the company should be able to leverage something called the Natural Gas Act in order to circumvent the Mass state Constitution. The 1938 measure gives the Federal Energy Regulatory Commission (FERC) control over interstate natural gas commerce, and the court found that it applied in this scenario. Last May, a judge in Berkshire County granted access for the easement. Seven months later, Mass Attorney General Maura Healey announced that her office reached a compromise with Kinder Morgan — the company agreed to pay nearly $1.3 million to the Commonwealth to compensate for the forest land it took by eminent domain.
While the legal conflict with Healey caught several headlines, far less visible has been another roadblock to the expansion project: Native American ceremonial stone features that were in the way of said requested easements. Upon the request of the Narragansett Indian Tribe, Kinder Morgan funded field research to determine the presence of those ceremonial stone features, 73 of which were identified. The FERC, which grants approval for these kinds of infrastructure projects, is required to make sure that consultations with tribes happen when pipelines cut through sacred sites. Doug Harris, the Narragansett deputy tribal historical preservation officer and preservationist for ceremonial landscapes, details the events that followed:
“On Dec 5, during a FERC tribal consultation, Kinder Morgan informed [impacted tribes, the Narragansett, Wampanoag of Gay Head-Aquinnah, Pequot, Mohegan and Stockbridge-Munsee among them] that [one-third] of the 73 identified features would be impacted. FERC then supported the Kinder Morgan/Tennessee Gas Pipeline notion of documenting-dismantling-storing-reconstructing as their proposed form of ‘mitigation’ … This proposal is desecration of ancestral indigenous spiritual prayers in stone to the spirit of our Mother the Earth. It is our belief that these prayers call for balance and harmony in a place of great trauma and that they qualify as being ‘of religious significance to tribes’ [pursuant to the National Historic Preservation Act], and the gas pipeline company proposed to replace them with what we perceive to be artistic replicas.”
Describing actions that bear similarity to the fight between operators of the Dakota Access Pipeline and Native Americans at the Standing Rock Indian Reservation, Harris continues: “[FERC] did not allow the tribes to ‘participate in the resolution of adverse effects’ [as required by law] … nor has there been an official National Register of Historic Places ‘determination of eligibility’ of these tribally identified ceremonial stone features … One of the requests that tribal ‘participation in the resolution of adverse effects’ would have investigated was the technique of boring deep beneath the ceremonial stone features, rather than dismantle them, but the tribes were never afforded that NHPA opportunity by FERC.”
STEP 3: SCARE OPPONENTS
This past August, the Tennessee Gas Pipeline Company, a subsidiary of Kinder Morganworking on the CT Expansion, filed a preliminary injunction in Mass district court to stop a formal petition process by citizens that brought the company’s water quality certificate — meant to protect the public and its natural resources — into question. The project had been conditionally approved by the state’s Department of Environmental Protection’s (MassDEP) regional office; still, environmental advocates appealed the original ruling in hopes of getting a second look. And were promptly sued.
“We were all personally served with a big stack of papers … because we were the ones [who] spoke up,” says Rosemary Wessel, an activist and founder of the group No Fracked Gas in MA. “They tried to say this is a federal project and that challenges to state permits don’t allow you to hold up the process. They were trying to get their notice to proceed [from FERC] at the time.”
Some of the questions raised in the citizen’s petition included concerns over the degrading and impairment of water uses and quality, specifically because the area contains protected wetland resource areas and systems, streams that qualify as cold water fisheries, and also the Umber Shadowdragon dragonfly, a species of special concern for the Mass Division of Fisheries and Wildlife.
The district court issued a stay of the company’s suit against the citizens. However, the First Circuit US Court of Appeals agreed with the petition’s call for all the questions to be answered.
“The importance [of the ruling] is that the vast preemption powers of the Natural Gas Act do have limits, and we have helped to define them,” says Eiseman of MassPLAN. “We have shown that they cannot cut short a state agency review of a … water quality certification that was properly appealed to the state agency. As for the district court suit against us, that is an unsurprising tactic. Kinder Morgan has even sued people for making faces at their workers.”
The multinational’s reputation precedes it. In Canada, a Kinder Morgan attorney argued that the snarls of protesters are a form of assault. As one of the company’s lawyers said during a 2014 court proceeding: “One of the things I will argue is that is not only intimidation, but that is actually an assault … Some of the faces demonstrate the anger, and frankly, the violence demonstrated by some of the people.” The comments prompted a backlash on social media.
Meanwhile, in Western Mass, on March 25 Tennessee Gas and the parties it was suing — a defendant list that included the Mass Department of Environmental Protection, its commissioner, and several activists — together requested a joint dismissal of the civil suit. Two days later, FERC issued a final decision on the water quality certificate in favor of Kinder Morgan.
As reported in iBerkshires, local authorities were unsure of what to expect in terms of responsive protests. Lt. Col. Thomas Grady of the Berkshire County Sheriff’s office, who sits on the Western Mass Homeland Security Council, told the Central Berkshire Regional Emergency Planning Committee last Wednesday, “Otis has been identified by some of the protest groups as one of the four key places in the country. We don’t know what that means on the outset but I just want us to be aware of that should something ramp up.”
Kinder Morgan took the threats of protests seriously, hiring private security to patrol the roads that connect to the pipeline easement. According to Boyd and others, some locals have complained about being stopped by hired guards during the commute home from work. One man said he was pulled over at 11 pm one mile away from the pipeline route; this and other incidents, says Boyd, are “pretty frustrating, costly, and wearing for the townspeople.” Boyd also noted that Kinder Morgan is paying for state police details.
Jean Atwater-Williams, a resident of Sandisfield who lives less than 300 feet from the pipeline, also says she has been negatively impacted by Kinder Morgan’s presence. While driving home, Atwater-Williams says, she has been “flashed by the lights of the security patrol personnel.” She says she feels invaded by the round-the-clock “security everywhere, including on our property and within sight of our main living area.” Atwater-Williams continues: “There is a hundredfold increase in traffic, and despite being told that work would be six days per week, they have been cutting trees for eight days straight.”
STEP 4: HEDGE YOUR BETS
Sandisfield is a rural town without a large budget for public roadways and services. There are roughly 900 residents and 90 miles of country roads that see fewer cars in a day than most city thoroughfares do in a rush hour minute. So imagine what would happen in the event of an infrastructure emergency. Say, for instance — hypothetically speaking — a pipeline leaks or explodes. Could a volunteer fire department and a police force with a mere 20 hours a week of budgeted officer coverage be able to adequately handle such a disaster? You might be wondering, There has to be some help nearby. We are all one big happy commonwealth, right? Well, no. The nearest major fire department is nearly 30 miles away in Pittsfield.
According to Sandisfield Selectwoman Boyd, Kinder Morgan cancelled its meeting to sign the road use and community benefits agreement. “When push came to shove, they disappeared and refused to sign,” she says. Kinder Morgan spokespeople did not respond to inquiries for this article.
Other Sandisfield officials have made similar futile attempts to rectify things, while state legislators from the area have been trying to get the company back at the table. As of this writing, the reimbursements for legal fees that the small town was reportedly promised in 2014 have still not arrived. Boyd says she last made contact three weeks ago with the subsidiary of Kinder Morgan that is running the expansion project in her backyard.
“My job is to deal with the reality that this is very expensive for this town with zero benefit,” Boyd says.
As for the more than half-a-million dollars that the state has received in exchange for allowing a pipeline to cut through a once-protected forest… The laws surrounding land exchange are not meant to be speculative. While the Commonwealth has received the settlement money, not all of the replacement conservation land has been fully identified. In another case, Kinder Morgan purchased one slice of farmland in Sandisfield to use as a pipe yard. Once construction is complete, the company is supposed to transfer that land over to the Department of Conservation and Recreation (DCR) and, according to Eiseman, “magically change the farmland into wetlands.” The MassPLAN director adds, “There is a high failure in wetland replication.”
On April 24, MassPLAN filed a request to FERC to rehear the notice to proceed on grounds that the federal agency allegedly failed to adequately involve the public, or otherwise fully comply with the National Historic Preservation Act, during the planning process. Environmental advocates also question the need for this project, as contracts were first drawn three years ago and were based on since-outdated energy production forecasts that critics say have not come to fruition.
“If it turns out there is not the need that was forecasted, then the utilities shall return to the agency to readjust the capacity plan,” Eiseman says. “Which means there is a legal requirement to resize the contracts. They do not need this [Mass] loop under any standards. They could drop this piece and still meet demand in Connecticut.”
Kinder Morgan answered MassPLAN’s request for a rehearing with FERC by stating that distribution companies have subscribed to a need for the gas. Furthermore, the company claims that the project minimizes impacts on nearby landowners and that arguments furnished by MassPLAN and the Narragansett Indian Tribal Historic Preservation Office “lack merit and should be denied.”
Pipeline opponents, six of whom were reportedly arrested by the state police for trespassing while protesting the expansion last week, don’t buy it. “The message is that — we have said [this] all along — the state of [Massachusetts] should be standing up for this land,” says Eiseman of MassPLAN. “When it comes down to it, according to utilities it is consumers in Connecticut driving the need for the pipeline. We all need to be connecting to everyone we know in [Connecticut] to make it understood there that our protected public forest is being sacrificed for their outdated and ill-advised energy policy.”
In response to inquiries for this article, a FERC spokesperson pointed to three time windows — 15 days in August and September 2014, another 20 days that October, and 30 days in 2015 — when the public had a chance to give input. Nonetheless, as of this writing there are still innumerable unresolved issues around the Kinder Morgan expansion in Mass. For one, objections of the Narragansetts have gone largely unanswered, according to tribal spokespeople, while tree-cutting started last week.
For their part, last month US Sens. Elizabeth Warren and Ed Markey sent a letter to FERC requesting that the agency revoke the permission to proceed at Otis State Forest. Asked for comment on that matter, a FERC spokesperson wrote in an email that it is department “policy not to comment on Congressional correspondence.”
For Kinder Morgan, which has already disrupted Sandisfield in more ways than one, it is probably best that the contentious issues remain unanswered. After all, this isn’t a vacuum. The company’s tactics have worked in the past. Who is to say they won’t work again?
This article was produced by the Boston Institute for Nonprofit Journalism and published in DigBoston.