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 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.
Standard of Review
Motion to Dismiss
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).
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). “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).
following facts are undisputed unless otherwise
noted. 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.
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.
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 §
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.
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 ...