Three Strikes and the Commonwealth Is Out: The Natural Gas Act Preempts Article 97

Last week, Judge John Agostini ruled that the Natural Gas Act preempts Article 97 of the Massachusetts Constitution, which otherwise would have required a 2/3 vote of the Legislature before Article 97 land could be conveyed to Tennessee Gas Pipeline Company for construction of a gas pipeline to be built in part through Otis State Forest.  otis-state-forest-entrance-bc84d8e7cbd761ea

Not only did Judge Agostini conclude that Article 97 is preempted, he found preemption every which way.

  • Explicit preemption – “Congress has explicitly preempted state laws and regulations with respect to construction, maintenance and expansion of interstate natural gas lines.”
  • Field preemption – “Congress creat[ed] a comprehensive regulatory framework through which, among other things, the movement of natural gas through the interstate pipelines could be coordinated. Simply stated, Congress intended to ‘occupy the field’ through pervasive and comprehensive federal laws and regulations.”
  • Conflict preemption – “It is beyond cavil that Article 97, by giving the Commonwealth an unfettered right to stop this and similar projects, would directly and substantially conflict with federal law. In fact, permitting the states to exercise the unilateral ability to interfere with federal policy in this area would eviscerate the NGA.”

The Commonwealth tried to argue that Article 97 is somehow unique and not subject to preemption because it implicates core public trust authority of the Massachusetts as sovereign.  Judge Agostini wasn’t buying it.

The argument of the Commonwealth is so expansive that it would preclude any activity by the federal government that would seek to intrude on such conservation territory. Moreover, with such power on the side of the Commonwealth, it could simply thwart preemption for any purpose by bringing any land under the umbrella of Article 97.

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To the extent that the Commonwealth seeks support from the fact that Article 97 is a constitutional provision and, thereby, afforded greater deference from the Supremacy Clause, the law is littered with numerous state constitutional provisions felled by federal preemptions.

Sorry, Massachusetts conservationists, but Judge Agostini got it right.

Judge Agostini did stay the resulting injunction until July 29, 2016, to give the Legislature time to act, but the opinion is firm.  The stay is not an opportunity for the Commonwealth to figure out how to avoid preemption; it is an opportunity for the Commonwealth to figure out how to concede defeat gracefully.

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