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What Price a Mountain?

Comments on Regulations: "Disposition or Change in Use of Article 97 Interests"

By Patrick White, Stockbridge Select Board

Article 97 of the Massachusetts Constitution protects conservation land. This land is explicitly protected to ensure that it is used for conservation purposes and not converted to other uses.

The state has proposed new regulations to govern these lands, available at:

https://www.mass.gov/doc/draft-open-space-act-regulations-301-cmr-5200-112224/download

The link above does not mention solar, but many have suggested the purpose of these changes in regulations is to pave the way for commercial solar installations on publicly owned conservation land.

I will limit my comments to one section of the proposed regulations, "XX.09 Funding in Lieu of Replacement Land". This section begins on page 7 of the proposed regulations.

Basically, this section lays out a way to pay into a fund to compensate for an alternative use of these conservation lands of not less than 110% of fair market value.

It lays out the path to alternative uses with a number of criteria, but the first is the most consequential: "it serves a significant public interest." Like, to many of us, solar/renewable energy.

For those who support renewable energy, this perhaps is easy to justify. We have climate net zero goals to reach in just 25 years. I would caution against this thinking. As events of the last 48 hours have amply demonstrated, there is unfortunately no consensus in this country as to what, if any, actions we should take with regard to climate.

Who decides what serves a significant public interest? Well, of course, those in power. While the current administration may feel its climate agenda is laudable, a sentiment I share, what happens when a future administration has a different position? For example, clear cutting justified by the "young forests" argument? Or strip mining justified by the acquisition of rare earth metals needed for electric cars? Or a new resort or casino justified by a local municipality's economic development plan? Anyone in power can use the levers of power, either locally or via statewide office, to justify just about anything.

I would like to point to the portions of Beartown Mountain in Lee and Stockbridge that are owned by the Commonwealth. Four Article 97 parcels with a total of 639 acres and an assessed value of $2.2 million. With the 110% rule, this or a future administration, regardless of their political leanings, could convert this to an alternative use. It would need only find that the conversion serves a significant public interest and pony up a mere $2.5 million to pay itself. I haven't checked the Cherry Sheet, but the state's view of the parcel's fair market value might be even less.

The risk that these parcels could be converted to another use under these regulations is immense.

I recognize how hard it is to meet your solar goals through rooftop and canopy solar. However, many academics are predicting that artificial intelligence and quantum mechanics together will increase solar efficiency by two to three times current technology in just 15-20 years. I would argue for a strategy to focus solar on the already-built environment and median strip land, while doubling down on demand-reduction initiatives, like the immensely successful MassSave program. I recognize that this may make the 2050 net zero goal impossible to meet. Personally, I would gladly delay the date by a few years to save forests that take well over a century to mature.

This administration should be doing everything it can to protect the state's forests, both now and in the future, rather than putting them at risk for the profits that "alternative uses" can deliver to energy, logging, mining, or development interests.

Many indigenous leaders have indicated their plan for the conservation land they steward is to leave their tribes' forests alone for the next 200 years. Now that sounds like the best climate strategy I've heard in recent memory.

I urge the Commonwealth not to open the door that would allow our forests to be converted to alternative uses to advance a political agenda, be it yours or that of a future administration whose world view may be significantly at odds with your own.