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Boston Gas Co. v. City of Boston

Superior Court of Massachusetts, Suffolk

July 16, 2018

BOSTON GAS COMPANY dba National Grid
v.
CITY OF BOSTON

          DECISION AND ORDER REGARDING PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS (DOCKET ENTRY NO. 14.0)

          Brian A. Davis, J.

          This case involves an ordinance adopted by the City of Boston regulating the inspection, maintenance, and repair of natural gas leaks within the City (the "Ordinance"). The Ordinance also purports to authorize the creation of standards for imposing liability on gas distributors for environmental damage caused by natural gas leaks with the City of Boston.

         Plaintiff Boston Gas has filed a motion for judgment on the pleadings based, primarily, on the Supreme Judicial Court’s decisions in Boston Gas Company v. City of Somerville, 420 Mass. 702 (1995), and Boston Gas Company v. City of Newton, 425 Mass. 697 (1997), in which the SJC held that local legislation concerning the manufacture and sale of gas and electricity generally is preempted by the broad, statewide, regulatory scheme established by G.L.c. 164 and the regulations promulgated thereunder (collectively, "Chapter 164").

         The Court conducted a hearing on Boston Gas’ motion for judgment on the pleadings on July 11, 2018. Both sides appeared and argued. Upon consideration of the various written submissions of the parties and the oral arguments of counsel, the motion is ALLOWED as to all sections of the Ordinance except Section 13.3.8, and DENIED as to that one section for the reasons stated at the hearing and memorialized, briefly, below.

         The Court agrees with Boston Gas that the SJC’s decisions in City of Somerville and City of Newton make it plain that, with limited exceptions, non-incidental local rules and ordinances affecting the manufacture and sale of gas and electricity are preempted by Chapter 164. The Court reads City of Newton, in particular, as recognizing that inconsistent local rules and ordinances governing the inspection and maintenance or repair of gas distribution facilities and infrastructure are preempted because they would "undermine the ‘fundamental State policy of ensuring uniform and efficient utility services to the public’" embodied in Chapter 164. 425 Mass. at 703 (quoting City of Somerville, 420 Mass. at 706). There is no real dispute in this proceeding that all of the various sections of the Ordinance (with the exception of Section 13.3.8, which is discussed below) are "inconsistent" with the requirements of Chapter 164 in that they impose (or threaten to impose) obligations on natural gas distributors that are different from, or beyond, what is mandated under Chapter 164 and currently enforced, on a statewide level, by the Department of Public Utilities ("DPU"). As such, those sections[1] of the Ordinance are preempted by Chapter 164 as interpreted by the SJC in City of Somerville and City of Newton.

         The fact that the City couches its inconsistent obligations as "permitting" requirements does not make them any less objectionable, or any less subject to preemption, because the net effect on Boston Gas is the same as if the obligations had been imposed directly. Cf. City of Newton, 425 Mass. at 699-706 (portion of ordinance charging inspection and maintenance fees as a prerequisite to acquiring a permit to excavate public ways and sidewalk was invalid); New England Legal Found. v. Massachusetts Port Auth., 883 F.2d 157, 174 (1st Cir. 1989) (in concluding that Massport’s landing fee regulations were preempted by Federal law, observing that "Massport cannot do indirectly what it is forbidden to do directly"). Moreover, Section 75 of Chapter 164, which expressly permits the "aldermen or selectmen" of a town or city to "regulate, restrict and control all acts and doings of a corporation subject to this chapter which may in any manner affect the health, safety, convenience or property of the inhabitants of their towns," does not validate or authorize the inconsistent obligations created by the Ordinance because, as the SJC previously has recognized, Section 75 provides only "limited authority to a municipality and must yield at times to the broader grant of authority given" to the DPU under Chapter 164. City of Newton, 425 Mass. at 703. See also City of Somerville, 420 Mass. at 706 (municipality "cannot use its limited authority [pursuant to G.L.c. 164, § 75, ] to enact an ordinance which has the practical effect of frustrating the fundamental State policy of ensuring uniform and efficient utility services to the public").

          The outcome is different, however, with respect to Section 13.3.8 of the Ordinance, which requires only that Boston Gas provide directly to the City certain information that Boston Gas already provides to the DPU.[1] There is no "inconsistency" in requiring[2] Boston Gas to share such information with the City, and doing so would do nothing to "undermine the ‘fundamental State policy of ensuring uniform and efficient utility services to the public’" embodied in Chapter 164. Accordingly, Section 13.3.8 of the Ordinance, and only Section 13.3.8 of the Ordinance, is a valid and enforceable exercise of the City of Boston’s authority to "regulate" a public utility such as Boston Gas under Section 75 of Chapter 164.

         The parties shall appear for a further Rule 16 conference on August 22, 2018, at 2:00 p.m. to discuss the anticipated course and needs of this action going forward.

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Notes:

[1] Section 13.3.8 of the Ordinance states,

In the interest of improving the management of City [of Boston] infrastructure, each as company that owns or operates natural gas transportation or storage infrastructure within the City shall, within 120 days of passage of this Ordinance and at least annually thereafter, provide the following to Public Works:

a) any plan to address aging or leaking natural gas infrastructure that the gas company provided to the Department of Public Utilities within the prior year under section 145(b) of chapter 164 of the General Laws of the Commonwealth;
b) any report identifying Grade 1, Grade 2, and Grade 3 leaks located within the City that the gas company provided to the Department of Public Utilities within the prior year as required by section 11 of chapter 164 ...

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