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Directly Affected Landowner Mount Grace is a landowner directly affected by the NED, as we own conservation land on the proposed pipeline route in Erving, MA between mileposts (“MP”) 16 and 17 and adjacent (within .25 mile) to the proposed pipeline route in Warwick, MA near MP 28. Mount Grace also holds conservation easements (synonymous with conservation restrictions under MGL c. 184, s. 31-33) on land adjacent to the proposed pipeline route in Northfield, MA near MP 28 and in Montague, MA near MP12. In addition, Mount Grace has facilitated the conservation of several other permanently protected lands directly affected by the NED in Northfield, MA on the Proposed Pipeline route and adjacent to the planned Compressor Station at MP24, in some instances pre-acquiring and later conveying the land or easement to the Commonwealth of Massachusetts or Town of Northfield explicitly for conservation purposes. The 23-town primary service area of Mount Grace is well-documented as a highly-intact and threatened landscape that provides extensive environmental, health, recreational, cultural, and economic benefits to local communities and the general public. For example, a 2009 study by the United States Forest Service ranked the Millers River Watershed, which covers nearly half of Mount Grace’s core service area, as one of the nation’s watersheds whose high water quality is most threatened by increased development density on private forest lands.1 Assessing Public Benefits and Adverse Effects In order for FERC to meet its statutory obligations, a full and complete accounting of adverse impacts (net mitigation) to property rights, the environment, and communities must be made in order to determine that there exists a net public benefit from the NED project.2 Three independent reports compiled since 20003 indicate that of Massachusetts’ five million acres: one million has been developed, one million has been conserved, and a strategically selected half of the remaining three million acres must be conserved to sustain the ecosystem services, biodiversity, food and water sources, and quality of life in the Commonwealth. The NED would diminish both already conserved resources and the quality of other natural resources that have been identified as priorities for future protection. Comprehensive acquisition and replacement costs of lands that will be lost completely and those that will be

1 Stein, Susan M. et al., “Private Forests, Public Benefits: Increased Housing Density and Other Pressures on Private Forest Contributions,” Gen. Tech. Rep. PNW-GTR-795, U.S. Department of Agriculture, pg. 19 (2009), available at http://www.fs.fed.us/openspace/fote/benefits_files/pnw-gtr795_pt2.pdf. 2 FERC, Statement of Policy, “Certification of New Interstate Natural Gas Pipeline Facilities,” 88 FERC ¶ 61,227 (PL-99-3-000) (1999) at p. 26. 3 Land Conservation Plan Task Force, Massachusetts Statewide Land Conservation Plan: A Consensus Vision for Land Conservation (2003), Governor Mitt Romney; Foster, D. R., D. B. Kittredge, B. Donahue, G. Motzkin, D. A. Orwig, A. M. Ellison, B. Hall, E. A. Colburn, and A. D‘Amato. (2005), Wildlands and Woodlands: a Vision for the Forests of Massachusetts. Harvard Forest Paper 27. Harvard Forest, Harvard University, Petersham, Massachusetts; Woolsey, H., A. Finton, J. DeNormandie. (2010). BioMap2: Conserving the Biodiversity of Massachusetts in a Changing World. MA Department of Fish and Game/Natural Heritage & Endangered Species Program and The Nature Conservancy/Massachusetts Program.

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diminished must be tallied, along with the lost ecosystem service and other benefits they would have continued to provide to current and future generations.4 Co-location and Relocation to New Hampshire Mount Grace does not support the Proposed Pipeline, either as proposed in the November 2014 Preliminary Application or as relocated by TGP’s amended preferred route as outlined in a December 8, 2014 filing with FERC. The revised route relies heavily on the broad assumption that co-location, most often parallel and adjacent to electric transmission line easements, inherently reduces environmental impact. This assumption has not yet been explicitly analyzed, compared, or documented. Contrary to public perception, co-location would require as much or more deforestation. TGP has described, and in documented instances demarcated on the ground, that frequently a 100+/- buffer of trees, in forested areas, would exist between the edge of the existing easement clearing and trees cleared in the proposed co-located easement for the NED. Narrow stands of trees suddenly exposed to increased wind are highly susceptible to wind-throw. Such risks must be detailed in the forthcoming draft Environmental Impact Statement (“EIS”). Of approximately 81 miles of co-location in Massachusetts, only three miles are co-located with an underground pipeline. (TGP RR Table 8.1-3) FERC must require a thorough comparison between co-locating the greenfield NED pipeline along existing overhead transmission line routes and other route alternatives, with particular attention to impacts to wetlands, tree cover, steep slopes, other erosion prone areas, and intact forest blocks. It is stated by TGP5 that the December 2014 reroute will cross fewer Article 976 properties in Massachusetts. However, this is only achieved by moving seventy-seven miles of the pipeline out of Massachusetts altogether and into New Hampshire, a jurisdiction which will receive a disproportionately low amount of any project benefit. Mount Grace is a founding member of the Quabbin to Cardigan (Q2C) Partnership7, a two-state, 100-mile conservation focus area initiative established in 2003 by public and private conservation entities in Massachusetts and New Hampshire. Several affected New Hampshire towns are within the Q2C region. The revised route is equally incompatible with the goals of the Q2C Partnership as the initially filed route.

4 Trust for Public Land (2013), The Return on Investment in Parks and Open Space in Massachusetts, http://cloud.tpl.org/pubs/benefits-ma-roi-report.pdf. 5 Letter from J. Curtis Moffat, Deputy General Counsel and Vice President, Gas Group Legal, TGP, to Kimberly D. Bose, Secretary, FERC (December 8, 2014). 6 Article 97 of the Massachusetts Constitution, passed by referendum in 1972. 7 Launched in 2003, the Quabbin to Cardigan Partnership (Q2C) is a collaborative, landscape-scale effort to conserve the Monadnock Highlands of north-central Massachusetts and western New Hampshire. The two-state region spans one hundred miles from the Quabbin Reservoir northward to Mount Cardigan and the White Mountain National Forest, and is bounded to the east and west by the Merrimack and Connecticut River Valleys. Encompassing approximately two million acres, the Quabbin to Cardigan region is one of the largest remaining areas of intact, interconnected, ecologically significant forest in central New England, and is a key headwater of the Merrimack and Connecticut rivers. The Q2C region’s forests collect and naturally filter drinking water for almost 200 cities and towns including the City of Boston. www.nqpartnership.org.

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It is worthwhile noting here that TGP’s July 24, 2015 filing reflects a reduction of the original project size (so-called “benefit”) from 2.2 Bcf/day to 1.3 Bcf/day of gas yet delivers substantially equivalent negative impacts to property rights, terrestrial and aquatic natural resources, and community interests. Soils and Geologic Resources Steep slopes with certain soil attributes are evidencing increased landslide occurrences resulting from increased incidences of intense rain events due to increased atmospheric moisture from rising global temperatures. The risk of such events is mapped and documented in a 2013 study8 by the Massachusetts State Geologist prepared for the Federal Emergency Management Agency, the Massachusetts Emergency Management Agency, and the Massachusetts Department of Conservation and Recreation. The risks and associated costs of road repair and surface water sedimentation, among other impacts, have not yet been fully or adequately described in TGP’s Resource Reports. Many public (and private) conservation lands impacted by the proposed NED contain such vulnerable steep slopes, for example, Potter Mountain in the Pittsfield State Forest. Benefits of Conservation Land In Massachusetts, there remain at least 85 properties subject to Article 97 Constitutional protection, of a total of at least 110 legally conserved properties, directly impacted by the Proposed Pipeline. Massachusetts’ public and private lands, and areas subject to conservation and other preservation restrictions (collectively, “Conservation Areas”)9 must be appropriately considered in FERC’s review of the costs and benefits of the Project.10 These Conservation Areas provide important environmental benefits as well as significant economic and other social values to land owners and surrounding communities. Massachusetts invests upwards of $30 million dollars of public, tax-payer funds per year11 acquiring and otherwise permanently conserving land and easements in order to protect their economic, environmental, health, and social benefits. FERC must, and should, consider the impacts of the Proposed Pipeline on these environmental and economic resources when determining if the Proposed Pipeline serves the public interest. Should FERC proceed with a full National Environmental Policy Act (“NEPA”) analysis or issue a Certificate of Public Convenience and Necessity (“Certificate”) for the Proposed Pipeline, its determinations of environmental

8 Mabee, S.B and Duncan, C.C, Slope Stability Map of Massachusetts (2013), University of Massachusetts. http://www.geo.umass.edu/stategeologist/Products/Landslide_Map/Slope_Stability_Map_MA_Report.pdf 9 The term “Conservation Area” is used broadly in these comments to encompass a range of preservation tools, including conservation restrictions, preservation restrictions and watershed preservation restrictions as defined in M.G.L. ch. 184, §31, and agricultural and forestry restrictions. 10 Beyond the Project’s impacts on Conservation Areas, there is also a significant question as to the benefit, need for, or appropriateness of, the Project from either a capacity or public interest perspective. 11 Trust for Public Land, p. 12

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impacts, required mitigation, and Certificate conditions must fully account for the benefits of all public and private Conservation Areas that will be impaired by the Proposed Pipeline. Although the Natural Gas Act (“NGA,” 15 U.S.C. § 717 et seq.) may preempt some of the state laws that protect Conservation Areas, FERC’s analysis should still be informed by the strong legal system that the Commonwealth has developed to protect the benefits provided by, and public and private investment in, Conservation Areas.

FERC Must Consider the Benefits of Conservation Areas and Mitigate Risks to Such Resources Should FERC determine, even in the face of lost benefits, that the Project is in the public interest, it must ensure that any such harms are mitigated. Specifically, FERC should consider the impacts to Conservation Areas and the benefits they provide when:

(1) Balancing the Proposed Pipeline’s projected benefits against adverse consequences to determine if the Project is “necessary or desirable in the public interest;”

(2) Conducting the NEPA analysis of alternatives to the proposed route, including the no

action alternative, and developing mitigation measures (if the Commission determines the Proposed Pipeline is in the public interest); and

(3) Imposing conditions on the Certificate (assuming the Commission determines the

Proposed Pipeline is in the public interest and complies with NEPA).

FERC’s Public Interest Assessment Before approving the Proposed Pipeline, FERC must determine that it is “necessary or desirable in the public interest” (15 U.S.C. § 717f (c)). This process includes balancing the Project’s projected public benefits against potential adverse consequences; the Commission only proceeds when the benefits outweigh the adverse effects, i.e., when FERC determines that a Proposed Pipeline is in the public interest.12 As touched upon more below, the Proposed Pipeline would impair many benefits provided by Conservation Areas. The Commission must adequately account for the specific harms to Conservation Areas and the benefits they provide, including harms to owners of Conservation Areas and surrounding communities, when balancing the Project’s projected benefits against potential adverse consequences. The Conservation Areas and related benefits that would be lost due to the Project are resources that cannot be easily replaced, if at all, even with mitigation. In this instance, the impacts on Conservation Areas and the benefits they provide weigh heavily against authorizing the Project.13

12 See e.g., FERC Statement of Policy, “Certification of New Interstate Natural Gas Pipeline Facilities,” 88 FERC ¶ 61,227 (1999), orders clarifying policy, 90 FERC ¶ 61,128 (Feb. 2000) and 92 FERC ¶ 61,094 (July 2000) (collectively, the “Statement of Policy”). 13 While these comments focus on the benefits of Conservation Areas that are threatened by the proposed pipeline, and argue that the loss of such benefits must be weighed against any value provided by the project, we

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Conservation Areas provide benefits that have significant direct economic value and contributions to property owners and the Commonwealth’s economy. Many omissions of well-established public and private Conservation Areas persist in TGP’s recent Resource Reports. These Conservation Areas are a matter of record readily available from numerous sources including official internet services of the Massachusetts Registry of Deeds. To fully weigh the cumulative adverse impacts to Conservation Areas, the draft EIS must include a full and accurate listing and a description of each Conservation Area parcel adversely affected by the Proposed Pipeline. Federal Conservation Lands and Interests Accuracy of all information provided in Resource Reports (RR) by the Project proponent is put into question when omitted or overlooked information includes: RR 8.3.1.1.1 Numerous federal holdings in lands not outlined in the RR include federal investments and interests in the New England National Scenic Trail, administered, in part, by the National Park Service (NPS), including a hiker’s cabin constructed with NPS funds on private land (owned by Richardson in Northfield, MA) conserved with funds from the United States Forest Service (USFS) Forest Legacy Program on June 27, 2011 as recorded at Franklin County Registry of Deeds Book 6034, Page 179. In addition, the United States Department of Agriculture (USDA) holds interests in numerous agricultural easements on the Proposed Pipeline route include the Williams Farm in Deerfield, MA conserved on June 29, 2004 as recorded at Franklin County Registry of Deeds Book 4633, Page 221 and signed by the Natural Resource Conservation Service on behalf of the United States of America at page 39. Federal Conservation Lands; Sample Published Description Excerpts

Northeastern Area Forest Legacy Program (FLP)

The Tract Record Third Quarter FY 2011

Protecting the New England National Scenic Trail in Massachusetts Along the New England National Scenic Trail and its viewshed, the Metacomet-Monadnock Forest (MMF) Forest Legacy project continued to conserve land for active forestry and public recreation with three project closings on June 27, 2011. Sam and Barbara Richardson granted a conservation restriction (CR) to the Town of Northfield. The Town’s conservation commission will administer and monitor the CR. The 38-acre parcel includes 1,800 feet of the New England

note that there is also a question of whether there is a public need for the pipeline at all, even absent its adverse effects. See e.g., ENE, “Pipeline Alternatives Assessment: Energy Resources to Meet New England’s Winter Needs” (June 2014), available at http://acadiacenter.org/wp-content/uploads/2014/09/ENE_Pipelines_Alternatives_Assessment_140612_RF.pdf; Feldstein, M. and Kessler K., “Burden of Proof,: The Case Against the Proposed Northeast Energy Direct (NED) Fracked Gas Pipeline,” (Aug. 2014), available at http://www.nofrackedgasinmass.org/notgp/wp-content/uploads/2014/09/BurdenOfProof.pdf.

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National Scenic Trail as well as two spectacular scenic overlooks atop Alexander Hill. The Richardsons sold the CR for the fair market value for $21,000 in FLP funds [Another] tract had Mount Grace Land Conservation Trust sell a neighboring 123-acre parcel [pre-acquired from Northfield Mount Hermon School] to the Town for the appraised value of $185,000 in FLP funds. The acquisitions are adjacent to the 48-acre Town of Northfield Brush Mountain Conservation Area, which also includes a segment of the New England National Scenic Trail. Other cost-share was previously acquired through lands previously donated to the Metacomet-Monadnock Forest (MMF) project. These tracts are joined by eight other tracts in the MMF project containing fee and conservation restriction acquisitions and donations that protect a total of 1,052 acres of forests over a several mile-wide expanse and protecting many parts of the New England National Scenic Trail along with other forest values.

Northfield Mount Hermon Parent Update January 2012

National Scenic Trail

NMH has helped protect a section of New England’s National Scenic Trail by selling 117 acres of land to the Mount Grace Land Conservation Trust, a regional organization that serves 23 towns in Franklin and Worcester counties. Located across from the Northfield Town Forest, the parcel includes part of Northfield’s Great Swamp. Mount Grace plans to transfer the property to the Massachusetts Department of Conservation and Recreation (DCR) in 2012, when it will be added to the Northfield State Forest. FERC’s consideration of adverse consequences to a comprehensive list of all federal and other Conservation Areas and the benefits they provide should not be limited to values that are directly quantifiable in monetary terms. Many of the benefits that Conservation Areas provide to property owners and surrounding communities, e.g., better health from cleaner air and water, might not be easily quantified, but avoided costs, like reduced asthma cases, are economic interests, the impairment of which should be included in FERC’s analysis of the Proposed Pipeline’s impacts. In addition, as discussed above, Massachusetts’ historic economic investment in Conservation Areas, including by direct investments and foregone state (301 CMR 14.00) and federal (26 U.S.C. §170(h) and others) tax revenues (deductions and credits), need to be weighed against any demonstrated benefits of the proposed Project. All of these investments must be fully accounted for and impacts avoided and minimized to the greatest extent practicable, or fully mitigated. Eminent Domain In assessing whether the Proposed Pipeline is in the public interest, FERC must specifically consider the extent to which TGP will exercise eminent domain authority to obtain access to

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land required for the Proposed Pipeline. (Assuming FERC issues TGP a Certificate, Section 7(h) of the Natural Gas Act grants the company the right to condemn private (and public) property for the Proposed Pipeline as a public use). According to FERC, the strength of the Project’s benefit showing must be proportional to TGP’s proposed exercise of eminent domain.14 A pipeline route that goes through Conservation Areas will require an increased exercise of eminent domain. Many Conservation Areas are subject to restrictions, held either by public agencies or by qualified15 nonprofit conservations organizations, that limit the holder’s right to grant permission for activities such as drilling or excavation or uses that would conflict with allowed uses and the unique conservation purposes of the particular property. For example, The Commonwealth of MA Executive Office of Energy and Environmental Affairs (“EEA”) sample conservation restriction prohibits holders from authorizing any construction or other activity that is inconsistent with the purpose of the restrictions.16 Even if the holder of a conservation restriction is not contractually prohibited from granting access for a pipeline, providing such authorization might be contrary to an organization’s public or charitable purpose, thus preventing it from allowing access to its land absent an eminent domain taking. Likewise, given the number of municipalities that have adopted resolutions against the Proposed Pipeline, TGP would likely need to exercise eminent domain authority to take any municipal land required for the Proposed Pipeline. FERC should assume that the Proposed Pipeline would require a significant exercise of eminent domain, thus increasing the required level of demonstrated public benefits that the Project must supply in order to be in the public interest. Other more reasonable and reasonably-sized proposals to adequately meet the energy needs of the region put forth to date necessitate only a tiny fraction of the amount of eminent domain that would be required by the NED to be exercised against private, municipal, charitable, and state lands. Eminent domain is recognized as a tool of last resort to be wielded only when it is for a necessary or appropriate purpose. NEPA Environmental Review Process The National Environmental Policy Act (“NEPA”, 42 U.S.C. §4321 et seq.) requires federal agencies to consider potential environmental impacts of an action or authorization of an action.17 With respect to the Proposed Pipeline, FERC has stated that it will prepare an

14 See e.g., id.; 90 FERC ¶ 61,128 at pg. 19 15 IRS 170(h) 16 EEA, “The Massachusetts Conservation Restriction Handbook” (1991). 17 NEPA is only one of the federal laws applicable to the Project. TGP will also need to demonstrate compliance with, for example, the Clean Air Act, Clean Water Act, Endangered Species Act, and National Historic Preservation Act.

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Environmental Impact Statement (“EIS”) as part of the NEPA process.18 Should the Commission determine that the Proposed Pipeline would be in the public interest, the EIS must consider the significant environmental value of Conservation Areas that would be impacted by the Proposed Pipeline when evaluating alternatives to TGP’s proposed route and when determining mitigation requirements. Project impacts that must be considered as part of the NEPA analysis include ecological effects, (including on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative.” (40 C.F.R. § 1508.8). In evaluating required mitigation, FERC must consider opportunities for:

(a) Avoiding an impact altogether by not taking a certain action or parts of an action.

(b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation.

(c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.

(d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action. [and]

(e) Compensating for the impact by replacing or providing substitute resources or environments.

40 C.F.R. § 1508.20.

According to the Council on Environmental Quality (“CEQ”) the need to mitigate impacts is not limited to major effects:

Mitigation measures must be considered even for impacts that by themselves would not be considered ‘significant.’ Once the proposal itself is considered as a whole to have significant effects, all of its specific effects on the environment (whether or not ‘significant’) must be considered, and mitigation measures must be developed where it is feasible to do so.

46 Fed. Reg. 18,026 (Q. 19a) (March 23, 1981). Thus, even individual or smaller harms to Conservation Areas must be evaluated and mitigated.

A full set of mitigation measures cannot be identified and considered until TGP presents further information about the Project and its impacts. However, by way of example, potential mitigation measures could include requiring TGP to:

18See Letter from Cheryl A. LaFleur, Chairman, FERC, to Congressman James P. McGovern (Oct. 24, 2014).

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Fund Conservation Area establishment in each of the affected towns, of equivalent size, context, and function.

Fund the creation of “travel lanes or corridors” of sufficient width for animals where habitat is fragmented.

State and Local Plans and Laws The EIS must address how inconsistencies between the proposed Project and any State or Local plan or law will be reconciled.19 Thus, the EIS should examine the Proposed Pipeline’s compliance with state laws, such as, but not limited to, the Massachusetts Wetlands Protection Act (M.G.L. c. 131, § 40), the Massachusetts Rivers Protection Act, Chapter 258 of the Acts of 1996, Endangered Species Act (M.G.L c.131A), the Global Warming Solutions Act (M.G.L. c. 21N) and Clean Waters Act (M.G.L. c. 21, §§ 26-35), the Public Shade Tree Act (M.G.L. c. 87), Taxation of Forest, Agricultural, and Recreation Lands (M.G.L. c. 61, c. 61A, and c. 61B), the Massachusetts Eminent Domain statute (M.G.L. c. 79) and local laws, including, but not limited to, municipal wetlands ordinances and bylaws and regional plans developed with municipalities by Regional Planning Agencies, such as the Franklin Regional Council of Government’s 2014 report, Sustainable Franklin County: A Regional Plan for Sustainable Development. Conditioning the Certificate of Public Convenience and Necessity FERC has the authority to issue Certificates with “reasonable terms and conditions as the public convenience and necessity may require” (15 U.S.C. § 717(f)(e)). Should FERC issue a Certificate for the Project, we urge the Commission to include conditions to minimize adverse impacts on Conservation Areas and surrounding communities. A full set of conditions cannot be identified until TGP provides thorough information for a complete draft environmental report, but an example of an appropriate condition would be to condition the Certificate on TGP’s compliance with mitigation measures spelled out in the EIS. In addition, FERC should condition the Certificate on TGP’s compliance with Article 97 of the Massachusetts Constitution. This would be consistent with TGP’s public commitment to seek an Article 97 vote from the Massachusetts legislature.20 At a minimum, FERC should condition the Certificate on TGP’s compliance with Massachusetts’ “No Net Loss” policy for Article 97 land. Such a condition would be consistent with FERC’s general expectation that natural gas companies will “comply with state and local requirements, to the extent that doing so does not interfere with actions that the Commission has determined are required by the public convenience and necessity.”21

19 40 C.F.R. § 1506.2(d) (“To better integrate environmental impact statements into State or local planning processes, statements shall discuss any inconsistency of a proposed action with any approved State or local plan and laws (whether or not federally sanctioned). Where an inconsistency exists, the statement should describe the extent to which the agency would reconcile its proposed action with the plan or law.”) 20 TGP Resource Report 1, December 2014, at 1-82. 21 Letter from Cheryl A. LaFleur, Acting Chairman, FERC, to Rep. James P. McGovern (June 18, 2014).

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Massachusetts Laws and Policies Promote Defense of Conservation Areas Routing extensive lengths of the NED (currently greater than 25%) through Conservation Areas would directly and egregiously contravene Massachusetts laws and policies that protect and expand Conservation Areas. The Commonwealth’s commitment to public lands can, and should, inform FERC’s evaluation of the Proposed Pipeline, even if the normal implementation of certain statutory protections is preempted by the Natural Gas Act.22 At a minimum, should FERC issue a Certificate for the Proposed Pipeline, we urge the Commission to implement the Massachusetts Executive Office of Energy and Environmental Affairs’ (EEA) policy of “No Net Loss” of Article 97 properties (discussed below), and to apply that objective to all Conservation Areas, public or nonprofit, as a condition of its approval of the Proposed Pipeline. Accuracy of all information provided in Resource Reports (RR) by the Project proponent is put into question when omitted or overlooked information includes: RR 8.3.1.1.2 State interests in lands not described or addressed include numerous state investments and interests such as a complete lack of reference to the New England National Scenic Trail passing through the Northfield State Forest and intersecting with the Proposed Pipeline two times north of Alexander Hill Road in the Northfield State Forest. Article 97 of the Massachusetts Constitution In Massachusetts, the right to a clean environment and the government’s obligation to protect natural resources are embedded in the Constitution, which provides that:

The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.

Massachusetts Constitution, Art. XCVII (hereinafter, “Article 97”) as explained by the Massachusetts Supreme Judicial Court, “conservation and environmental protection are express obligations of the government in Massachusetts.”23 Article 97 enables the Massachusetts legislature to acquire lands and easements, including via takings, in furtherance of the purposes outlined in the provision (“Article 97 properties”). Once acquired, these lands are subject to procedural safeguards regarding disposition or change in use. In brief, a two-thirds vote by the Massachusetts legislature is required before any (i)

22 See e.g., Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300-01 (1988). 23 New England Forestry Foundation, Inc. v. Board of Assessors of Hawley, 498 Mass. 138, 152-153 (2014) (finding that “holding land in its natural pristine condition and thereby protecting wildlife habitats, filtering the air and water supply, and absorbing carbon emissions, combined with engaging in sustainable harvests to ensure the longevity of the forest” constituted engaging in activities of that “may benefit the general public”).

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disposition of Article 97 land, i.e. a change in legal or physical control such as easements to private parties, or (ii) change in use, even to another Article 97 use if inconsistent with the prior Article 97 use. According to TGP, the Proposed Pipeline would cross Article 97 lands in a manner that would require a two-thirds vote by the Massachusetts legislature. EEA’s implementation of Article 97 includes an “Article 97 Land Disposition Policy,” which iterates that EEA, and its agencies, shall not, as a general rule, “sell, transfer, lease, relinquish, release, alienate, or change the control or use” of any right or interest of the Commonwealth in and to Article 97 properties.24 A condition for an exception to EEA’s general rule of non-disposition is that “real estate of equal or greater fair market value or value in use of proposed use, whichever is greater, and significantly greater resource value as determined by [EEA] and its agencies,” must be granted to the party disposing Article 97 property.25 This “No Net Loss” policy of Article 97 helps protect the constitutional rights of the citizens of Massachusetts.26 Compliance with the provisions of the “No Net Loss” policy is required by rule and by practice for each individual parcel subject to Article 97. Release of Public and Charitable Conservation Restrictions, Dedications, and Trusts The Constitutional right to a clean environment is further reflected in the Commonwealth’s laws, which create substantive and procedural protections that may also apply to Article 97 properties and other Conservation Areas, including state and/or municipal-level review and approval of changes in use of such areas. For example, M.G.L. c. 184 § 32 establishes procedural requirements that must be met before the release of conservation, preservation, or watershed preservation restrictions held by governmental entities, charitable corporations, or trusts. With respect to conservation restrictions, for instance:

A government-held restriction cannot be released without public notice, hearing and vote by the governmental body holding the restriction;

A restriction held by a charitable corporation or trust cannot be released without a vote by the relevant mayor, city manager, city council or town selectmen; and

A restriction that was initially approved by EEA cannot be released without approval from EEA.

In addition, M.G.L. c. 40 § 15A provides that lands owned by a municipality (excluding land acquired for park purposes) with a designated specific purpose may only be subjected to another purpose upon a two-thirds vote of the city council, with the approval of the city manager or mayor, or a two-thirds vote at a regular or special town meeting. TGP must be required to thoroughly identify all lands subject to public and charitable restrictions and dedications that would be adversely affected by the Proposed Pipeline, as well as the 24 EOEEA [formerly EOEA], “Article 97 Land Disposition Policy,” (1998), available at http://www.mass.gov/eea/docs/eea/dcs/dcsarticle97.pdf. 25 Id. (emphasis in original). 26 Id.

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subsequent specific harms which would incur to the public interest in order to provide sufficient cost: benefit analysis and/or mitigation. Public Trust, Prior Public Use, and Charitable Public Trust Massachusetts common law also provides procedures that govern changes in use of certain public lands. Specifically, the public trust doctrine and the doctrine of prior public use both offer protections for public lands and certain water resources. In short, the public trust doctrine in Massachusetts provides that navigable waters (e.g., the Connecticut River, which is located in Mount Grace’s service area), great ponds (>10 acres), and the lands beneath them are held in trust by the Commonwealth for the benefit of the public.27 Lands protected under the public trust can be relinquished only by a vote of the legislature in furtherance of a “proper public purpose.”28 The prior public use doctrine applies the concepts of the public trust doctrine from waterways and submerged lands to upland resources, providing that “land devoted to one public use may not be diverted to another inconsistent use without plain and explicit legislation authorizing the diversion.”29 TGP must be required to thoroughly identify all public trust and prior public use lands and resources that would be adversely affected, and the subsequent specific harms which would incur to the public interest in order to provide sufficient cost: benefit analysis and/or mitigation. Fiduciary duties, at both the state and federal level, imposed by explicit and implied Public Charitable Trusts and Charitable Trusts limit decision making latitude in governing bodies of public entities and nonprofits, respectively.30 Charitable trusts In Massachusetts, the Attorney General has an express role by statute in the case of charitable/public trusts.31 TGP must list parcels covered by charitable and public trust requirements and describe how it will avoid, minimize, or mitigate related negative impacts to the public interests affected. For many parcels along the proposed NED route the publicly recorded deed or conservation easement clearly describes the trust imposed that can only be altered in a judicial cy pres proceeding.

Public Investment and Tax Benefits The Commonwealth’s commitment to the protection of Conservation Areas is reflected in its significant financial investment in the acquisition and preservation of such areas. For example, between 1998 and 2011, Massachusetts funded the conservation of 131,000 acres, including lands protected through conservation easements and direct acquisitions.32 Federal and

27 See e.g., Fafard v. Conservation Com'n of Barnstable, 432 Mass. 194, 198-99 (2000); Boston Waterfront Development Corp. v. Com., 378 Mass. 629, 633–34 (1979). 28 Opinion of the Justices to Senate, 383 Mass. 895, 905–06 (1981). 29 Mahajan v. Dept. of Envtl. Protection, 464 Mass. 604, 616 (2013) (quoting Robbins v. Department of Pub. Works, 355 Mass. 328, 330 (1969)). 30 M.L. Leslie, Esq., Fiduciary Duties and the Limits of Charitable Self-regulation (2013), 33 Utah Envtl. L. Rev. 163. 31 G. Bialecki, Esq., Public or Charitable Trusts and Protection Against Disposition of Conservation Lands (2003). 32 Trust for Public Land, p. 12.

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charitable funds have also been used in the acquisition or protection of Conservation Areas affected by the Proposed Pipeline.

In addition to directly investing in the protection of these properties, the Commonwealth offers incentives for private landowners to dedicate their properties to conservation purposes, including via a number of tax benefit programs. For example, the Commonwealth Conservation Land Tax Credit grants tax credits of up to $75,000 for donations of conservation land, (301 C.M.R. 14.00), and the Massachusetts Current Use Program gives preferential tax treatment to property maintained as open space for the purposes of timber production, agriculture or recreation (M.G.L. c. 61, c. 61A, c. 61B). In some instances, the sale or conversion of land enrolled in such tax programs is subject to a right of first refusal to purchase vested in either the relevant municipality, Commonwealth, or nonprofit conservation organization (e.g., M.G.L. c. 61, §8). The conversion of land in the Current Use Program triggers a rollback tax payable to the municipality. TGP must calculate all costs associated with the conversion of such land, include increased future tax liabilities to landowners disqualified from the program as a result of the loss of enrolled forest, agricultural, and natural habitat lands. Negative Impacts on Massachusetts Conservation Areas and the Benefits They Provide According to TGP’s July 2015 Resource Report the revised preferred pipeline route in Massachusetts would alter 8,800 acres during construction and 2,500 acres permanently in the four affected states, and 2,300 acres during construction and 700 acres permanently in Massachusetts.33 The route of the Proposed Pipeline would traverse several dozen Massachusetts municipalities from the Berkshires to the North Shore. Conservation restrictions prohibit a wide range of activities, including construction of any conduits, lines or permanent structures, excavation or dredging, activities detrimental to water conservation, water quality, erosion control or soil conservation, stockpiling of soil, cutting or removal of any trees or any other vegetation, or any other uses of the land or activity thereon which is inconsistent with the purposes of the conservation restriction.34

Conservation Areas like Mount Grace’s Poplar Mountain Conservation Area, Charles C. Morse Memorial Forest, Bitzer and Richardson Conservation Restrictions, Northfield Town Forest, the Montague Plains Wildlife Management Area, and Northfield-Erving-Warwick State Forest complex provide a wide range of economic, public health, and environmental benefits to Massachusetts communities, property owners, economies and ecosystems. The Trust for Public Land estimates that every $1 invested by the Commonwealth of Massachusetts in land conservation returns $4 in natural goods and services to the Commonwealth’s economy.35 The environmental benefits of Conservation Areas also contribute to property values in surrounding

33 TGP, “Northeast Energy Direct Project: Draft Environmental Report, Resource Report 8,” (July 2015) (hereinafter, “Resource Report 8”). 34 MA Executive Office of Energy and Environmental Affairs, Division of Conservation Services, Lock-Down Model Conservation Restriction. 35 Trust for Public Land, p. 20.

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communities, quality of life, and the scenic beauty of the state, all of which impact the state’s ability to attract business, tourism, and labor. Conservation Areas provide a wide range of economic and nonmaterial benefits whose value must be taken into account when evaluating whether projects that would impair such benefits are in the public interest. Economic calculations in the Project EIS must include the following: Water Use and Quality: Conservation Areas play an important role in providing drinking water and preserving water quality. For instance, forests and wetlands purify water by stabilizing soils and filtering contaminants, which prevents pollutants from developed areas flowing into drinking water sources. This is particularly important in Massachusetts, where approximately 80 percent of the population receives its drinking water from surface water sources.36 Conservation Areas such as wetlands and other pervious surfaces may also capture and store water, thereby helping to control flooding and regulate supply. The natural characteristics of Conservation Areas provide a cost effective alternative to expensive water treatment facilities. For example, a study of 27 water supplies found that, “[f]or each 10 percent increase in forest cover on the watershed surrounding a drinking water reservoir, water treatment costs were reduced by 20 percent,” and noted that, “while increased treatment costs must be paid each year, the cost of conserving land is a one-time expenditure.” 37 Similarly, the Trust for Public Lands calculated that the $130 million spent on land acquisition by the Massachusetts Department of Conservation and Recreation over a 20 year period resulted in the ability to forego additional filtration and savings of approximately $200 million.38 Flood Control: Conservation Areas with water storage capacity, e.g., wetlands, can reduce flooding and subsequent damages and recovery costs. Maintaining such areas is particularly important in flood prone areas and will become more important as climate change leads to increased precipitation events. For example, a one-acre wetland can typically store about one million gallons of water, and wetland vegetation can slow the speed of floodwaters.

Vegetation and Wildlife: Habitat destruction is a significant threat to species, and the impacts of

habitat destruction, even in small amounts, may be exacerbated when the alteration creates

fragmentation in habitats, which can interrupt normal animal movement within habitats and

36 U.S. Environmental Protection Agency, “Fiscal Year 2011 Drinking Water and Ground Water Statistics,” EPA 816-R-13-003, pg. 11 (2013), available at http://water.epa.gov/scitech/datait/databases/drink/sdwisfed/upload/epa816r13003.pdf. 37 Executive Office of Energy and Environmental Affairs, “100,000 Acres of New Conservation Land and 150 New Parks: A Legacy for the Next Generation,” pg. 14 (2014) (referencing a study performed by the American Water Works Association and the Trust for Public Land), available at http://www.mass.gov/eea/docs/eea/land/100k-acre-report-r1.pdf. 38 Trust for Public Land, “The Return on Investment,” at 16 (basing calculations on a filtration plant construction cost of $250 million and annual operating costs of $4 million over a twenty year period).

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isolate species.39 Large intact ecosystems, such as wetlands, forests or river networks,

“generally support larger populations of native species, a greater number of species, and more

intact natural processes than small, isolated examples.”40 Connected tracks of land are also

better suited to help plants and animals survive the types of extreme conditions that are

expected to increase due to climate change.41 Impacts to wildlife are not uniform, nor are they

uniformly benign. NEPA requires that adverse impacts to specific habitats and species must be

quantified based on specific components, structures, and functioning of affected ecosystems.

Air and Noise Quality: Conservation Areas can contribute to the removal of pollutants from

the air, including by supporting trees and other plants that filter pollutants through their leaves

and diffuse them into their cells. In Massachusetts, five of the counties that the Proposed

Pipeline would traverse have yet to reach attainment with the national eight-hour standard for

ozone – a pollutant that can interfere with respiratory functions and worsen conditions like

asthma, which resulted in hospitalization charges of $89 million in 2006.42

Socioeconomics and Recreation: Landowners and communities in socially and politically

progressive central and western Massachusetts are suffering adverse economic, social, and

psychological effects from stress resulting from the prospect of enormous and destructive fossil

fuel infrastructure being built and operated in an aesthetically intact New England landscape

they know well and love. Homes cannot be sold to get away from the threat because many are

of modest means: meaning land rich and cash poor. The attention, energy, and time of

community members are being redirected from the notable progress the region has achieved in

energy efficiency and renewable energy business development. TGP and FERC must take a hard

look at these socioeconomic factors, quantify the cost to public health, and suggest mitigation

that will adequately avoid or minimize exacerbation of the opportunity costs and other social

costs incurred over the entire duration of the Project.

Conservation Areas are a significant draw for outdoor enthusiasts in Massachusetts and New

Hampshire, and are used for activities such as hiking, skiing, biking, fishing, bird watching,

swimming and boating. In addition to the personal enjoyment derived from such activities, the

money spent on recreational activities, and associated travel, lodging, food and other goods

and services, is a direct benefit to the Massachusetts economy. Outdoor recreation generates

39 Massachusetts Department of Fish & Game and the Nature Conservancy, “BioMap2: Conserving the Biodiversity of Massachusetts in a Changing World,” 10, 16 (2010) (“Habitat loss and fragmentation are well understood as significant threats to biodiversity”) (hereinafter, “BioMap2”), available at http://www.mass.gov/eea/docs/dfg/nhesp/land-protection-and-management/biomap2-summary-report.pdf. 40 Id. at 12. 41 Id. 42 Massachusetts Department of Public Health, “Strategic Plan for Asthma in Massachusetts 2009-2014,” pg. 14 (2009), available at http://www.mass.gov/eohhs/docs/dph/com-health/asthma/state-plan.pdf.

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US Representative Tsongas US Representative Joseph P. Kennedy III US Representative Clark US Representative Moulton US Representative Capuano US Representative Lynch US Representative Keating Governor Baker MA Attorney General Healey MA Executive Office of Energy and Environmental Affairs Secretary Beaton MA Energy Facilities Siting Board, Greene MA Senate President Rosenberg MA Senate Minority Leader Tarr MA Senator Downing MA Senator Pacheco MA Senator Lovely MA Senator Cariddi MA Senator Flanagan MA Senator Lewis MA Senator L'Italien MA Senator McGee MA Senator O'Connor-Ives MA Speaker of the House DeLeo MA Representative Minority Leader Jones MA Representative Ehrlich MA Representative Kocot

MA Representative Kulik MA Representative Mark MA Representative Pignatelli MA Representative Smizik MA Representative Benson MA Representative Campbell MA Representative Cole MA Representative Garry MA Representative Harrington MA Representative Whipps-Lee MA Representative Lyons MA Representative Miceli MA Representative Naughton MA Representative Speliotis DCR Commissioner Sanchez DFG Commissioner Peterson Mary Griffin, MLTC Eugene Benson, MACC

Note: Some information adapted with permission from comments of Aladdine D. Joroff and Karen Dildei44 of the Emmet Environmental Law and Policy Clinic (ELPC) at Harvard University on behalf of the Merrimac River Watershed Council.

44 The ELPC works on a variety of local, national, and international projects covering the spectrum of environmental law and policy issues under the direction of Wendy B. Jacobs, Esq., a Clinical Professor at Harvard Law School and Director of the ELPC. 44 TGP, “Resource Report 1,” at 1-82.