City of Quincy v. Mass. Dep't of Envtl. Prot., 21-1131

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtKAYATTA, Circuit Judge.
Citation21 F.4th 8
Parties CITY OF QUINCY, MASSACHUSETTS ; Town of Hingham, Massachusetts ; Town of Braintree, Massachusetts; Dorothy Anderson; Alice Arena; Margaret Bellafiore; Wendy Cullivan; Susan Greene; Andrea Honore; Michael Lang; Curtis Nordgaard, M.D.; Thomas Pendergast ; Judy Roberts; Betsy Sowers; Bernadette Wilson; Kenneth J. Difazio ; Jane Hackett, Councilor at Large; Ed Harrington, District Five Councilor; Rebecca Haugh; George Loring; Arthur Mathews; Patrick M. O'Connor ; Frank Singleton ; Thomas Tanner, Petitioners, v. MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondent, Algonquin Gas Transmission, LLC, Intervenor.
Docket NumberNo. 21-1131,21-1131
Decision Date17 December 2021

21 F.4th 8

CITY OF QUINCY, MASSACHUSETTS ; Town of Hingham, Massachusetts ; Town of Braintree, Massachusetts; Dorothy Anderson; Alice Arena; Margaret Bellafiore; Wendy Cullivan; Susan Greene; Andrea Honore; Michael Lang; Curtis Nordgaard, M.D.; Thomas Pendergast ; Judy Roberts; Betsy Sowers; Bernadette Wilson; Kenneth J. Difazio ; Jane Hackett, Councilor at Large; Ed Harrington, District Five Councilor; Rebecca Haugh; George Loring; Arthur Mathews; Patrick M. O'Connor ; Frank Singleton ; Thomas Tanner, Petitioners,
v.
MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondent,

Algonquin Gas Transmission, LLC, Intervenor.

No. 21-1131

United States Court of Appeals, First Circuit.

December 17, 2021


Michael H. Hayden, with whom Morrison Mahoney LLP, Nicole I. Taub and Crystal Huff, Office of the Town Solicitor, Town of Braintree, Kerry T. Ryan, and Bogle, DeAscentis & Coughlin, P.C., were on brief, for petitioner.

Seth Schofield, Senior Appellate Counsel, Office of the Attorney General of Massachusetts, with whom Maura Healey, Attorney General for the Commonwealth of Massachusetts, was on brief, for respondent.

Jeremy C. Marwell, with whom Joshua S. Johnson and Vinson & Elkins LLP were on brief, for intervenor.

Before Thompson, Lipez, and Kayatta, Circuit Judges.

KAYATTA, Circuit Judge.

The City of Quincy, the Towns of Braintree and Hingham, and a group of citizens (collectively, "the City") challenge the final decision of the Massachusetts Department of Environmental Protection (DEP) reaffirming the issuance of an air permit to Algonquin Gas Transmission, LLC (Algonquin) for a natural gas compressor station located in Weymouth, Massachusetts. DEP had previously approved Algonquin's plans to power the Weymouth station using a natural-gas-fired turbine, which emits some amount of nitrogen oxides (NOx). The City and other petitioners convinced this court in a prior appeal that DEP did not follow its own established procedures when it eliminated an electric motor as a possible alternative to the gas-fired turbine. See Town of Weymouth v. Mass. Dep't of Env't Prot., 961 F.3d 34 (1st Cir.), modified on reh'g, 973 F.3d 143 (1st Cir. 2020). We remanded to DEP to assess whether an electric motor was in fact what Massachusetts regulations call the "best available control technology" (BACT) for the new station. After holding a hearing and considering additional record evidence, DEP again concluded that an electric motor was not BACT for the Weymouth compressor station and reaffirmed Algonquin's air permit. Satisfied that the agency's actions on remand were not arbitrary and capricious, we now deny the City's petition for further review and affirm DEP's decision after remand.

I.

Our opinion in Town of Weymouth recounts the factual background and circumstances leading up to the proceedings on remand that form the basis of this petition. See 961 F.3d at 38–41. We repeat only the essential details, beginning with a brief description of the applicable regulatory framework.

A.

Pursuant to the Natural Gas Act (NGA), 15 U.S.C. § 717 et seq., the Federal Energy Regulatory Commission (FERC) oversees the certification of interstate natural gas pipeline projects. As part of FERC's review of proposed pipelines, the agency must ensure that each project complies with all relevant federal permitting requirements, including those under the federal Clean Air Act (CAA), 42 U.S.C. § 7401 et seq. See 15 U.S.C. § 717b(d)(2). Congress expressly reserved in the NGA the rights of states to issue or deny permits under the CAA for interstate natural gas projects. See id. (providing that the NGA

21 F.4th 11

does not "affect[ ] the rights of States under ... the Clean Air Act"); see also Town of Weymouth, 961 F.3d at 39.

For its part, the CAA embraces a "cooperative federalism" approach "such that DEP, in enforcing the Massachusetts CAA, is in fact acting pursuant to the federal CAA." Town of Weymouth, 961 F.3d at 40 n.4 ; see also id. at 39 n.2. Under its authority, DEP has issued comprehensive regulations governing the control of air pollutants, including regulations regarding the issuance of air permits for stationary sources of air pollution like the Weymouth compressor station at issue in this appeal. See 310 Mass. Code Regs. § 7.02.

In order to obtain an air permit from DEP, an applicant must show that the proposed facility employs the "best available control technology" for each regulated air pollutant, including NOx. Id. § 7.02(8)(a)(2); see also Town of Weymouth, 961 F.3d at 41. BACT is defined as "an emission limitation based on the maximum degree of reduction of any regulated air contaminant emitted from or which results from any regulated facility" that DEP "determines is achievable for such facility through application of production processes and available methods, systems and techniques for control of each such contaminant." 310 Mass. Code Regs. § 7.00 ; see also 42 U.S.C. § 7479(3). Simply put, BACT is the most effective emissions control technology for a pollutant that is technologically and economically feasible for the given project.

The Environmental Protection Agency (EPA) has developed a five-step, "top-down" process for determining BACT. See EPA, New Source Review Workshop Manual: Prevention of Significant Deterioration and Nonattainment Area Permitting B.5–B.6 (1990), https://www.epa.gov/sites/default/files/2015-7/documents/1990wman.pdf [hereinafter NSR Workshop Manual ]. The five steps are as follows:

Step 1 : The applicant identifies and lists all available control technologies that have "a practical potential for application to the emissions unit and the regulated pollutant under evaluation." Id. at B.5. However, a control technology may be excluded at Step 1 of the BACT analysis if it would "redefine the source." Helping Hand Tools v. EPA, 848 F.3d 1185, 1194 (9th Cir. 2016) ; see also Town of Weymouth, 961 F.3d at 43.1

Step 2: The applicant eliminates any "technically infeasible options" from the list generated at Step 1. NSR Workshop Manual, supra, at B.7.2

Step 3 : The applicant "rank[s]" the "remaining control alternatives not eliminated in [S]tep 2" based on their effectiveness in reducing controlled pollutant emissions. Id. at B.7–B.8.

Step 4: The applicant evaluates "the energy, environmental, and economic impacts" of each control option and
21 F.4th 12
eliminates any controls that do not meet certain effectiveness criteria. Id. at B.8–B.9.

Step 5: The "most effective control option" that has not been eliminated is selected as BACT. Id. at B.9.

DEP has adopted EPA's five-step approach for BACT analysis in its guidance, which incorporates the NSR Workshop Manual by reference. See DEP, Best Available Control Technology (BACT) Guidance: Air Pollution Control Requirements for Construction, Substantial Reconstruction or Alteration of Facilities that Emit Air Contaminants 3 (2011), https://www.mass.gov/files/documents/2016/08/oo/bactguid.pdf [hereinafter DEP BACT Guidance ]. An applicant for an air permit must submit a BACT assessment to DEP, which the agency independently reviews before making a final determination with respect to BACT. See id. at 1; see also 310 Mass. Code Regs. § 7.02(8)(a)(2). DEP assesses BACT "on a case-by-case basis taking into account energy, environmental, and economic impacts and other costs." 310 Mass. Code Regs. § 7.00.

B.

In 2015, Algonquin, a natural gas transmission company, proposed to construct and operate the Atlantic Bridge Project, an infrastructure project designed to deliver natural gas to the northeastern United States. As part of the project, Algonquin sought to build several natural gas compression facilities, including the compressor station in Weymouth. Compressor stations are necessary for the delivery of natural gas through the Atlantic Bridge Project pipeline because they increase the system pressure inside the pipeline to ensure that gas flow remains at the required rates. See Town of Weymouth, 961 F.3d at 38–39. A compressor station is powered by a "driver," which can include, among other things, a gas-fired turbine or an electric motor.

For the Weymouth compressor station, Algonquin proposed to use a "SoLoNOx" Solar Taurus 60 natural-gas-fired combustion turbine as the station's driver. The basic idea is that the Weymouth compressor station, which is co-located with the pipeline, burns a small amount of the natural gas in the pipeline as fuel in order to generate the pressure necessary to allow the rest of the gas to flow through the pipeline to its ultimate destinations. See id. at 39. However, because the SoLoNOx turbine burns natural gas, it emits NOx, an air pollutant covered by federal and Massachusetts state environmental regulations.3 An electric motor does not emit NOx.

Initially, Algonquin's air permit application did not assess whether an electric motor, rather than the gas-fired SoLoNOx turbine, was BACT. Id. at 42. But after nearby municipalities and citizen groups, including the City, raised the potential of an electric motor as an alternative to the SoLoNOx turbine, Algonquin revised its application to account for the electric motor option. Algonquin's assessment of the electric motor proposed several reasons...

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