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Algonquin Gas Transmission, LLC v. Town of Weymouth

United States District Court, D. Massachusetts

February 11, 2019



          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiff Algonquin Gas Transmissions, LLC (“Algonquin”) has filed this lawsuit against the Town of Weymouth, Massachusetts (“Weymouth”) seeking declaratory relief of federal preemption under the Natural Gas Act, 15 U.S.C. §§ 717 et seq. (“NGA”) and a permanent injunction preventing Weymouth from invoking or relying upon an ordinance to deny Algonquin's efforts to obtain agency approval to construct and operate a natural gas pipeline compressor facility. D. 1. Algonquin has moved for summary judgment. D. 3. Weymouth has moved to dismiss, D. 19, and filed a cross-motion for summary judgment, D. 21. For the reasons stated below, the Court ALLOWS Algonquin's motion for summary judgment and DENIES Weymouth's motion to dismiss and cross-motion for summary judgment.

         II. Standard of Review

         A. Motion to Dismiss

         In considering 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 whether the complaint alleges “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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 misconduct alleged.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. at 678) (2009)). 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 (quoting Iqbal, 556 U.S. at 678).

         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). “An issue is genuine if ‘it may reasonably be resolved in favor of either party' at trial, and material if it ‘possess[es] the capacity to sway the outcome of the litigation under the applicable law.'” Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (alteration in original) (quoting Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir. 1997)). The movant “bears the burden of demonstrating the absence of a genuine issue of material fact.” Rosciti v. Ins. Co. of Pa., 659 F.3d 92, 96 (1st Cir. 2011) (quoting Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000)). If the movant meets its burden, the nonmovant “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. (alteration in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The Court views the record “in the light most favorable to the non-moving part[y]” and draws all reasonable inferences in the nonmovant's favor. Pineda v. Toomey, 533 F.3d 50, 53 (1st Cir. 2008).

         III. Factual Background

         The following facts are undisputed unless otherwise noted.[1] Algonquin is a natural gas company engaged in the transportation of natural gas in interstate commerce. D. 4 ¶ 1. On October 22, 2015, Algonquin and Maritimes & Northeast Pipeline, LLC (“Maritimes”) filed an application for a certificate of public convenience and necessity with the Federal Energy Regulatory Commission (“FERC”) to construct and operate a natural gas pipeline and related facilities known as the Atlantic Bridge Project (“AB Project”). Id. ¶ 2. As a part of the AB Project, Algonquin proposed to construct a compressor station located in Weymouth (the “Compressor Station”). Id. ¶ 3. Weymouth filed an unopposed petition to intervene in Algonquin and Maritimes' application process. Id. ¶ 5; D. 6-1 at 145.

         On May 2, 2016, FERC issued an environmental assessment for the AB Project. D. 4 ¶¶ 6-7; D. 6-1. FERC's assessment, which was subject to a thirty-day comment period, addressed potential environmental issues associated with the Compressor Station, including air quality, noise, and visual effects, as well as possible alternative locations for the Compressor Station. D. 4 ¶¶ 6-7; D. 6-1 at 18-52. FERC determined that “the impacts associated with [the AB Project] can be mitigated to support a finding of no significant impact.” D. 4 ¶ 8; D. 6-1 at 16. FERC concluded that an environmental impact study was not warranted. Id. On January 25, 2017, FERC issued a certificate (the “Certificate”) granting Algonquin's application for authorization to construct and operate the AB Project subject to certain conditions, see D. 4 ¶ 10; D. 6-1 at 54, including the completion of construction within two years from the date of the AB Certificate, compliance with applicable NGA regulations and compliance with environmental conditions outlined in Appendix B to the AB Certificate. D. 6-1 at 142-53. On February 24, 2017, Weymouth filed requests for rehearing and rescission of FERC's order authorizing the AB Project and a motion to stay the order. D. 4 ¶ 11; D. 7-1 at 1-93. FERC denied both requests. D. 7-1 at 97-98.

         As part of the conditions FERC set forth in Appendix B to the AB Certificate, Algonquin must obtain a consistency certification from the Massachusetts Office of Coastal Zone Management (“MCZM”) before beginning construction of the Compressor Station, D. 4 ¶ 16; D. 6-1 at 151. The MCZM is the lead state agency responsible for implementing the Massachusetts Coastal Management Program (“MCMP”) and reviewing federal licenses and permits to ensure consistency with the Coastal Zone Management Act (“CZMA”). D. 4 ¶ 17; D. 8-1 at 33. The Compressor Station would be in a “coastal zone” as defined by the CZMA because it affects land regulated by the MCMP. D. 4 ¶ 14; see 16 U.S.C. § 1455(d). In making consistency determinations as authorized by the CZMA, the MCZM reviews whether projects requiring a federal permit are consistent with the “enforceable policies” contained within the MCMP. D. 4 ¶ 18; D. 8-1 at 35; see 16 U.S.C § 1456(c)(3)(A).

         The MCZM has published a policy guide (the “Policy Guide”) that “serve[s] as the official reference for the enforceable policies, listed federal actions, and necessary data and information for the Massachusetts coastal program.” D. 4 ¶ 19; D. 8-1 at 35. Appendix 3 of the Policy Guide includes a “complete list” of statutes, regulation and other legal authorities “that constitute the legal basis for the enforceable [MCMP] policies.” D. 4 ¶ 38; D. 8-1 at 3; see D. 8-1 at 133-37. The list includes, in relevant part, the Public Waterfront Act, Mass. Gen. L. c. 91 (“Chapter 91”) and the Massachusetts Waterways Regulation, 310 C.M.R. § 9.00, D. 8-1 at 136, which are germane to the AB Project's consistency certification process given that permanent facilities and construction work associated with the Compressor Station require use of private and public tidelands regulated by Chapter 91 and 310 C.M.R. § 9.00. See D. 4 ¶ 40. Specifically, the Policy Guide states that an application for consistency certification must include “complete state licenses or permit applications, including a Chapter 91 Waterways License pursuant to 310 CMR § 9.00” (“Chapter 91 License”). D. 4 ¶ 39; see D. 8-1 at 43.

         On December 8, 2015, Algonquin filed an application with the Massachusetts Department of Environmental Protection (“DEP”) seeking a Chapter 91 License, which would authorize Algonquin to use certain filled tidelands to construct the Compressor Station. D. 4 ¶ 41; D. 8 ¶ 3. On May 17, 2017, DEP issued a “Written Determination Pursuant to M.G.L. Chapter 91” (the “Written Determination”) expressing “its intent to approve [Algonquin's] application subject to the attached conditions.” D. 4 ¶ 42; see D. 8-1 at 2. According to the Written Determination, DEP will not issue a Chapter 91 License until the Compression Station receives local approval pursuant to 310 C.M.R. § 9.11(3)(c)(3) (explaining that DEP may only provide a Chapter 91 license when the applicant has submitted, among other things, final documentation relative to other state and local approvals that must be obtained) or until a determination is made that such approvals are preempted under the NGA. D. 4 ¶ 44; D. 8-1 at 4-5. DEP ...

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