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Algonquin Gas Transmission, LLC v. Weymouth Conservation Commission

United States District Court, D. Massachusetts

December 29, 2017

ALGONQUIN GAS TRANSMISSION, LLC, Plaintiff,
v.
WEYMOUTH CONSERVATION COMMISSION, and the TOWN OF WEYMOUTH, Defendants.

          MEMORANDUM AND ORDER

          Denise J. Casper, United States District Judge.

         I. Introduction

         Plaintiff 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.

         II. Standard of Review

         A. Motion to Dismiss

         On a 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.

         B. Motion for Summary Judgment

         The 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).

         III. Factual Background

         The 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., ¶ 4.

         On 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.

         On May 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. Id.

         After 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.

         Weymouth has passed a Wetlands Protection Ordinance (“WPO”)[1], 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 ...


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