United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper, United States District Judge.
Algonquin Gas Transmissions, LLC (“Algonquin”)
has filed this lawsuit against Defendants Weymouth
Conservation Commission (“WCC”) and the town of
Weymouth, Massachusetts (“Weymouth”)
(collectively, “Defendants”) seeking declaratory
relief of federal preemption under the Natural Gas Act, 15
U.S.C. §§ 717 et seq. (“NGA”)
and the Pipeline Safety Act, 49 U.S.C. §§ 60101
et seq. (“PSA”) (“Count I”),
as well as a permanent injunction preventing Defendants from
enforcing or relying upon an ordinance denying
Algonquin's construction of a natural gas pipeline
compressor facility (“Count II”). D. 1. Algonquin
has moved for summary judgment, D. 7, and Defendants have
moved to dismiss for failure to state a claim, D. 12. For the
reasons stated below, the Court ALLOWS Algonquin's motion
for summary judgment, D. 7, and DENIES Defendants' motion
to dismiss, D. 12.
Standard of Review
Motion to Dismiss
motion to dismiss for failure to state a claim upon which
relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the
Court must determine if the facts alleged “plausibly
narrate a claim for relief.” Schatz v. Republican
State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012)
(internal citation omitted). Reading the complaint “as
a whole, ” the Court must conduct a two-step,
context-specific inquiry. García-Catalán v.
United States, 734 F.3d 100, 103 (1st Cir. 2013). First,
the Court must perform a close reading of the claim to
distinguish the factual allegations from the conclusory legal
allegations contained therein. Id. Factual
allegations must be accepted as true, while conclusory legal
conclusions are not entitled credit. Id. Second, the
Court must determine whether the factual allegations present
a “reasonable inference that the defendant is liable
for the conduct alleged.” Haley v. City of
Boston, 657 F.3d 39, 46 (1st Cir. 2011). In sum, the
complaint must provide sufficient factual allegations for the
Court to find the claim “plausible on its face.”
García-Catalán, 734 F.3d at 103.
Motion for Summary Judgment
Court grants summary judgment where there is no genuine
dispute as to any material fact and the undisputed facts
demonstrate that the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). “A fact is
material if it carries with it the potential to affect the
outcome of the suit under the applicable law.”
Santiago-Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 52 (1st Cir. 2000) (quoting Sanchez v.
Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The movant
bears the burden of demonstrating the absence of a genuine
issue of material fact. Carmona v. Toledo, 215 F.3d
124, 132 (1st Cir. 2000); see Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the movant meets
its burden, the non-moving party may not rest on the
allegations or denials in her pleadings, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but
“must, with respect to each issue on which she would
bear the burden of proof at trial, demonstrate that a trier
of fact could reasonably resolve that issue in her
favor.” Borges ex rel. S.M.B.W. v.
Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). “As
a general rule, that requires the production of evidence that
is ‘significant[ly] probative.'” Id.
(quoting Anderson, 477 U.S. at 249) (alteration in
original). The Court “view[s] the record in the light
most favorable to the nonmovant, drawing reasonable
inferences in his favor.” Noonan v. Staples,
Inc., 556 F.3d 20, 25 (1st Cir. 2009).
following facts are undisputed unless otherwise noted.
Algonquin is a “natural gas company” as defined
in the NGA, 15 U.S.C. § 717a(6). D. 7-1, ¶ 1. It is
engaged in the transportation of natural gas in interstate
commerce. Id. On January 30, 2015, Algonquin and
Maritimes & Northeast Pipeline, LLC
(“Maritimes”) asked permission from the Federal
Energy Regulatory Commission (“FERC”) to use its
Pre-Filing Process for approval of a natural gas pipeline and
natural gas facilities construction project known as the
Atlantic Bridge Project (“AB Project”).
Id., ¶ 2. On February 20, 2015, FERC approved
the request. Id. As a part of the AB Project,
Algonquin seeks to construct a compressor station in the town
of Weymouth (the “Weymouth Compressor Station”).
Id., ¶ 3. The Weymouth Compressor Station is
proposed to be built on land near the Fore River owned by
Algonquin and on which Algonquin currently operates a
pipeline and metering and regulating station. Id.,
October 22, 2015, Algonquin and Maritimes filed an
application for a Certificate of Public Convenience and
Necessity (“Certificate”) with FERC to receive
approval to construct and operate the facilities proposed in
the AB Project. Id., ¶ 5. Weymouth filed an
unopposed petition to intervene in Algonquin and
Maritimes' application process. Id., ¶ 6.
2, 2016, FERC issued an environmental assessment for the AB
Project, with a 30-day comment period. Id., ¶
7. The environmental assessment addressed issues including
(1) impact on wetlands, including that Algonquin would not
permanently fill any wetlands; (2) safety of the Weymouth
Compressor Station; (3) potential air quality, noise, and
visual effects from the Weymouth Compressor Station; (4)
risks of flooding or inundation of the land on which the
Weymouth Compressor Station would be built. Id.,
¶ 8. FERC concluded that any impacts it had identified
relating to the AB Project could be mitigated, thus
“support[ing] a finding of no significant
impact.” Id., ¶ 9. FERC concluded on this
basis that an environmental impact study was not warranted.
issuing the environmental assessment, FERC received hundreds
of comments, the majority of which were related to the
Weymouth Compressor Station. Id., ¶ 10. After
the comment period, on January 25, 2017, FERC issued a
certificate authorizing the construction and operation of the
AB Project (the “AB Certificate”). Id.,
¶ 11. The Weymouth Compressor Station would be located
in a “coastal zone” as defined by the Coastal
Zone Management Act (“CZMA”) affecting land
regulated by the Massachusetts Coastal Management Program
(“MCMP”). Id., ¶ 17. The AB
Certificate requires Algonquin and Maritimes to seek a
consistency certification with the CZMA before beginning
construction of the Weymouth Compressor Station.
Id., ¶ 18. The Massachusetts Office of Coastal
Zone Management (“MCZM”) is the agency primarily
responsible for regulating the MCMP. Id., ¶ 19.
The MCZM has published a policy guide to provide guidance on
its policies and practices. Id. On October 23, 2015,
Algonquin had submitted its consistency certification
application. Id., ¶ 20. On August 3, 2016, MCZM
proposed a one-year stay of the review period, and Algonquin
agreed. Id., ¶¶ 22-23.
has passed a Wetlands Protection Ordinance
(“WPO”), intended to regulate Weymouth's
wetlands above and beyond the regulations and procedures
provided by the Massachusetts Wetlands Protection Act
(“WPA”), Mass. Gen. L. c. 131, § 40. Local
conservation commissions like the WCC administer both the WPA
and any relevant local ordinances like the WPO. Id.,
¶ 28. Part of the property on which Algonquin and
Maritimes intend to build the Weymouth Compressor Station is
subject to the WPA and WPO. Id., ¶ 25. The AB
Certificate encouraged Algonquin and Maritimes to cooperate
with state and local authorities, but maintained that no
“state and local agencies, through application of state
or local laws, may prohibit or unreasonably delay the
construction or operation of ...