Land Matters Regarding the Pipeline Leigh Youngblood Executive Director Mount Grace Land Conservation Trust 1461 Old Keene Road, Athol, MA 01331 www.mountgrace.org January 13, 2015 1
Outline Introduction Mount Grace Pipeline and Energy DPU Access to Survey Land Use Impacts FERC Pre-Filing Request NEPA Application Eminent Domain Legal Speed Bumps Conservation Protections Article 97 of MA Constitution Charitable Trust Doctrines MGL Chapter 132 Conservation Restrictions Funding Source Requirements Municipal Land Ch. 40 sec. 8C Chapter 61, 61A, 61B Common Law Provisions Pipeline Alternatives What You Can Do Questions? 2
Existing pipelines 3
Revised NH Route Kinder Morgan-Tennessee Gas Pipeline Co 4
5
Community Conservation Across the Commonwealth
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 7
DPU Legal Memo 33-Page Memo Addresses Six Points Available at mountgrace.org Applicable to all land 1. DPU Authorization 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!
Land Use Impacts Natural Resources: FERC Reports FERC evaluates whether applicants avoid unnecessary impacts to the environment. Use this opportunity. 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 9
Land Use Impacts 100 Years of Conservation Construction: Clear cutting; Blasting; Excavation Long-term: Wetland and waterway degradation Groundwater disruption and contamination via pipe conduit Perforation of large forest blocks and other habitats Invasive species introduction Historic, tribal, and cultural resource loss Loss of investments in permanent public and private conservation land and restrictions
Land Use Impacts Example: Conserved 2011 11
Richardson USFS CR Legal and Environmental Impacts Wetlands and streams National Scenic Trail National Park Service Hut Chapter 61 property tax for conservation purpose Land trust pre-acquisition for conservation purpose State purchase with federal conservation funding via MA DCR (Article 97) 12
FERC Federal Energy Regulatory Commission Pre-Filing 9-15-14 Docket # PF 14-22 NEPA EA or EIS Application scheduled September 2015 13
FERC Process Resources Knowing and Protecting Your Rights A Guide by C. Elefant, Esq.5/17/10 Del. Riverkeepers v. FERC US Ct of Appeals 6/6/14 MACC Legal Memo N. Middlesex Permitting Process Steps - nmcog.org
Eminent Domain Certificate of Public Convenience and Necessity The FERC Permit 15
Eminent Domain Issuance of Certificate of Public Convenience and Necessity by FERC grants Eminent Domain power 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 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 local laws.
Eminent Domain Issues related to natural and cultural resources must be raised in the Pre-Filing Stage of the FERC process, which obligates FERC to address them 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 Co.) Article 97 of the Massachusetts Constitution Local Wetlands Protection Act-Conservation Commission Permit 18
Conservation Protections Article 97 of the Massachusetts Constitution Requires a 2/3 vote of the Legislature 19
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 and 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 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!
Conservation Protections Charitable Trust Doctrines Donor Restrictions Fiduciary Duty of Care Duty to Defend 501c3 Public Charitable Trust 22
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 25
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 27
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 l3 allows the owner 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 31
Pipeline Alternatives 1. Fix-It-First Repairs = Jobs 2. Storage Tanks for Peak Use 3. Gas Pricing Reform 4. Energy Efficiency Technology 5. Energy Conservation is most cost-effective strategy 6. Jobs & Training in Renewables 7. Community-scale, distributed energy production, like rooftops 8. More capacity in existing pipelines 32
What You Can Do Learn How We Can Meet Energy Needs With No Pipeline Submit Comments to FERC: Attend KM-TGP Open Houses and FERC Scoping Sessions Contact Legislators Statewide, Family, Neighbors, Agencies Speak in Support of Private Property Rights & Constitution Document Sensitive Natural and Cultural Resources Support Mount Grace!
www.mountgrace.org youngblood@mountgrace.org Questions? Resources Nofrackedgasinmass.org Northquabbinenergy.org Massplan.org Clf.org Acadiacenter.org Massland.org Maccweb.org Nmcog.org 34