1. business and industrial
2. energy
3. natural gas

Pipeline Strategies
& Article 97 Lands
Arthur Bergeron, Esq.
Mirick O’Connell, Worcester
David Singer, Esq.
Attorney & Mediator, Greenfield
Leigh Youngblood, Executive Director
Mount Grace Land Conservation Trust
March 21 2015
1
Outline
Introductions
Presenters
Pipeline –Northeast Energy Direct
Pipeline Alternatives
Conserved Land Affected
DPU – Access to Survey
FERC
Docket #
Process
Resource Reports
Sam & Barbara Richardson
Eminent Domain
Legal Speed Bumps
Strategies
Article 97 of MA Constitution
MEPA and NEPA
Other Conservation Protections
Charitable Trust Doctrines
MGL Chapter 132
Conservation Restrictions
Funding Source Requirements
Municipal Land Ch. 40 sec. 8C
Chapter 61, 61A, 61B
Common Law Provisions
What You Can Do
Questions?
2
Existing pipelines
3
Current Route
Northeast Energy Direct (NED) Pipeline
Unprecedented Project Scale far outsizing Peak-Demand Problem
4
5
A Few of the Problems
The Pipeline Would Create
Construction: Clear cutting; Blasting; Excavation
Long-term:
• Loss of investments in permanent public and private
conservation land and restrictions
• Perforation of large forest blocks and other habitats
• Invasive species introduction
• Wetland and waterway degradation
• Groundwater disruption and contamination via
new pipeline conduit
• Historic, tribal, and cultural resource loss
Avoidable impacts; unnecessary; and destructive to climate
Pipeline Alternatives
1.
2.
3.
4.
5.
6.
7.
Fix-It-First Repairs = Jobs
Storage Tanks for Peak Use
Gas Pricing Reform
Energy Efficiency Technology
Energy Conservation is most cost-effective strategy
Jobs & Training in Renewables
Community-scale,
distributed energy
production, like rooftops
8. More capacity in existing
pipelines
7
Conserved Land
Statewide, the proposed pipeline would cross (or be<200’ from)
at least 148 conserved tracts of land, including:
19 conserved farms
6 state forests
5 state wildlife management areas
26 town forests, conservation areas, or CRs
10 protected watershed areas
5 sections of National Scenic Trails
12 land trust properties
6 sporting clubs
a municipal playground
a YMCA Summer Camp
Land Trusts with Land
Directly Affected
Berkshire Natural Resources Council
The Trustee of Reservations
Massachusetts Audubon Society
Franklin Land Trust
Mount Grace Land Conservation Trust
Dracut Land Trust
New England Forestry Foundation
Andover Village Improvement Society
(AVIS)
Land Trust Regions
Crossed by Current Route
Hilltown Land Trust
Reading Open Land Trust
Lancaster Land Trust
Bay Circuit Alliance
North County Land Trust
Nashoba Conservation Trust
Townsend Land Conservation Trust
Bolton Conservation Trust
Sudbury Valley Trustees
Greater Worcester Land Trust
Essex County Greenbelt Association
DPU - MA Dept.
of Public Utilities
Authorization for
Access to Survey
• Sample Deny or Rescind Permission Letters to TGP
massplan.org and nofrackedgasinmass.org
• Legal Memo - Stopped DPU Forced Access May 2014
mountgrace.org
11
DPU Legal Memo
33-Page Memo Addresses Six Points
1. DPU Authorization does not = a right to excavate or drill
2. Landowners have right to prevent trespass
3. A “taking” requires formal process and payment
4. Timber trespass law in MA protects trees
5. DPU cannot allow violation of Article 97 status or CR
6. Until FERC Permit issued in 2016 – Certificate of Public
Convenience and Necessity - all laws apply!
Applicable to all land
Available at mountgrace.org
FERC
Federal Energy
Regulatory
Commission
• Tennessee Gas Pipeline
Docket # PF 14-22-000
• Cost:Benefit Analysis of Need and
Economic & Environmental Impacts
• Full FERC Application scheduled Autumn 2015
13
FERC Process
Resources
• FERC Statement of Policy on
New Pipelines - PL99-3-000
• Knowing and Protecting Your
Rights –by C. Elefant, Esq.
• Del. Riverkeepers v. FERC
US Ct of Appeals 6/6/14
• N. Middlesex – Permitting
Process Steps - nmcog.org
Community Impacts
Resource Reports filed with FERC
FERC evaluates if applicants “avoid unnecessary impacts to
the environment.” Use this framework to list your concerns.
2. Water Use & Quality
3. Fish, Wildlife, Vegetation
4. Cultural Resources
6. Geologic Resources
7. Soils
8. Land Use, Recreation, & Aesthetics
9. Air and Noise Quality
“Co-location” requires equivalent land clearing.
15
Land Impacts
Example: Conserved 2011
16
Richardson –USFS CR
Legal and Land Impacts
• National Scenic Trail
• National Park Service Hut
• State purchase with federal
conservation funding via MA
DCR (Article 97)
• Chapter 61 property tax for
conservation purpose
• Land trust pre-acquisition for
conservation purpose
• Wetlands and streams
17
Eminent Domain
The FERC Permit - Certificate of
Public Convenience and Necessity
18
Eminent Domain
• Issuance of Certificate of Public Convenience and
Necessity by FERC grants eminent domain power to TGP
• Taking of land by eminent domain is a US District Court
process of arriving at a price for land taken
• Landowners can negotiate for an easement/land sale prior
to eminent domain court proceeding, not recommended
 FERC requires TGP to “avoid unnecessary use of eminent
domain”, hence the attempt for an Article 97 vote and
negotiation with landowners
 Once Certificate is issued, state laws and constitution will
not protect landowners nor land because the Natural Gas
Act preempts state and local laws that interfere
Eminent Domain
• Issues related to economic, natural, and cultural resources
must be raised in the Pre-Filing Stage of the FERC process,
which obligates FERC to address them in the EIS
• Personal, municipal, and state-level concerns must be
researched and articulated now in comments
• Concerns must be tied to federal laws that are not
preempted by Natural Gas Act, whenever possible
• Once Certificate is issued – new issues cannot be raised –
only questions of process are accepted for appeal
Legal Speed Bumps
Federal NOT Pre-empted
• Natural Gas Act (limitations)
• NEPA - National Environmental
Protection Act (requirements)
• Clean Water Act, Sec 401&404
• Endangered Species Act
• Nat’l Historic Preservation Act
State
• Global Warming Solutions Act
• Energy Facilities Siting Board-10 Citizen Action MGL 30A Sec 10A
• DPU Approval of LDC Contracts (Local Distribution Company)
• Article 97 of the Massachusetts Constitution
Local
• Wetlands Protection Act-Conservation Commission Permit
21
Conservation
Protections
Article 97 of the
Massachusetts
Constitution
• Requires a 2/3
vote of the
Legislature
• Bill expected Jan 2017
22
Article 97
• Article 97 applies to municipal and state land acquired for
conservation purposes and/or land acquired with public
conservation funds
• Conservation lands and easements shall not be used for
other purposes or disposed of- - except by a 2/3 vote - of
our Legislators, excerpt of Article 97
• State policy and court decisions inform how Article 97 is
interpreted
• EEA has a strict policy on disposing of Article 97 land. It is
available online at mass.gov.eea
Article 97
To Uphold Conservation Status We Need:
14 of 40 MA Senators or
55 of 160 MA Representatives
To pledge to vote NOT to compromise Article 97 land
To override Art 97 MA Senate: 27 of 40 = 2/3 needed
To override Art 97 MA House: 107 of 160 = 2/3 needed
(or 2/3 of those present for the vote)
• Both the MA House and Senate must roll-call vote to
change the use or dispose of Article 97 land or easements.
• We must educate All Legislators across the state about
these requirements – in person, preferably!
Other Conservation Legal Issues
The following are covered in the handout and Q&A :
Charitable Trust Doctrines
MGL Chapter 132 Conservation Restrictions
Funding Source Requirements
Municipal Land Ch. 40 sec. 8C
Chapter 61, 61A, 61B
Common Law Provisions
25
Dealing With the Pipeline
Developing a Plan
Presented by:
Arthur P. Bergeron
[email protected]
THE BAD NEWS
 15 USC 717f(h)
 Federal Preemption
 FERC Mandate: More Energy
ARTICLE 97
THE GOOD NEWS
 NEPA
 MEPA (No Preemption)
JUSTICE DELAYED
IS
JUSTICE DENIED
PROJECTS DELAYED
ARE
PROJECTS DECEASED
SAME MARKET- 5 PROPOSALS
- 1.2 Bcf/d
-
.8 Bcf/d
YOUR GOALS
 Maximize Permitting Time
 Maximize Mitigation
(in case you lose)
YOUR OBJECTIVES
 Learn the Process
 Meet Your Friends
(or at least Know them)
 Find the Resources
THE ENEMY OF MY ENEMY
IS
MY FRIEND
YOUR FRIENDS IN THE
FREE MARKET
 The Other Pipelines
 Saudi Arabia
NEPA
 FERC Runs the Process
 Input from Federal Players
 Motion to Intervene 18 CFR 380.10
LENGTHY REPORT
 18 CFR 380.12
 13 Separate Reports
MEPA
 Separate Report
 Mass. Secretary of Energy
and Environmental Affairs
• Must sign off
301 CMR 11.09
SPECIAL REVIEW PROCEDURE
 Citizens Advisory Committee
• 10 Members
 Funding for Staff, Mailings, etc.
 Monthly Meetings
What You Can Do
• Learn How We Can Meet Energy
Needs With No Pipeline
• Submit Comments to FERC: Attend
FERC Scoping Sessions
• Contact Legislators Statewide,
Family, Neighbors, Agencies
• Speak in Support of Private Property
Rights & Constitution
• Document Important Economic,
Natural, and Cultural Resources
• Support Mount Grace!
www.mountgrace.org
[email protected]
Questions?
Send your written concerns to :
Tennessee Gas Company
FERC
MA DPUEnergy Facilities Siting Board
Governor Baker
Secretary Beaton
Attorney General Healy
State and Federal Legislators
42
Conservation
Protections
Charitable Trust
Doctrines
• Donor Restrictions
• Fiduciary Duty of Care
• Duty to Defend 501c3
• Public Charitable Trust
43
Charitable Trust
In contrast to Article 97, the Charitable Trust Doctrine
applies to nonprofit, land trust land and easements
• A Trust, not to be confused with an organization, is a
fiduciary relationship in relation to property
• This kind of Trust is created by explicit intention that an
asset be devoted to a specific charitable purpose, such
drinking water, recreation, etc
• Common Law applies, and requires a court proceeding,
not a legislative vote, to eliminate a Charitable Trust
• State law obligates the MA Attorney General to defend
Charitable Trusts
Charitable Trust
• Charitable Trusts are also at issue if cash donations
explicitly intended for conservation purposes were used to
buy a specific property or easement not otherwise
restricted by seller or donor of the land
• IRS 501c3 status obligates land trusts to defend their
assets held in the public interest
• If property is transferred for a specific public purpose to a
public entity (e.g. municipality, county, or state) a similar,
binding Public Charitable Trust, is created
• Caution: limitations apply, acquisition details must be
reviewed, not all land trust land is protected!
Conservation
Protections
MGL Chapter 132
Conservation &
Agricultural
Restrictions
46
MGL Chapter 132
Conservation, Agricultural, Watershed, and
Historic Restrictions
• Look at specific Purposes clauses each property is
protected for as written into CR/APR document These
detail some of the specific reasons the pipeline would
violate the public interest
• Easements are eligible for same treatment as land under
charitable and public charitable trust law
• Research the funding associated with each CR: donation,
bargain sale, foundation grants, dedicated conservation
funds. Contact all funders and signatories to weigh in
Conservation
Protections
Funding Source
Requirements
•
•
•
•
•
•
•
Community Preservation Act
State LAND and PARC Grants
Restricted Foundation Grants
Individual Donations
MA Conservation Tax Credit
Federal Tax Deduction - IRS
US Forest Legacy Program-LWCF
48
Funding Source Requirements
• At Risk: Billions of dollars of public and private
investment; cash; tax incentive; and in-kind
• The requirements and interested parties for each source
and type of funding should be researched and contacted
to at least provide comments
• The specific language referenced in guidelines of public
or private sources state the public interests
• IRS requires that donated CRs must be permanent to
qualify for a tax deduction (and must meet specific,
minimum conservation value tests)
Municipal
Conservation Land
Chapter 40 sec. 8C
…the [conservation] commission may acquire in
the name of the city or town… land or water
rights, conservation restrictions… to acquire,
maintain, improve, protect, limit the future use
of or otherwise conserve and properly utilize
open spaces in land and water areas within its
city or town, and it shall manage and control
the same. 2/3 vote to change.
Chapters 61, 61A, 61B
Current Use for Conservation
• If an easement is taken by eminent domain, how are the
provisions for Ch. 61 removal complied with?
• What if the removed land reduces the acreage below 10
acres so all the land must be withdrawn?
• How are penalties (back taxes and possibly conveyance
tax) & annual property tax dealt with?
• MGL Ch.79 (Eminent Domain) sec. 13 allows landowner to
remove the trees and sell them, but only within a specified
time or they are relinquished.
Conservation
Protections
Common Law
Provisions-Other
•
•
•
•
•
•
Trespass
Nuisance
Harassment
Prior Public Use
Dedication
Other
52