Fore River Residents Against Compressor Station v. Office of Coastal Zone Mgmt.

• Citation: 179 N.E.3d 603
• Decision Date: 16 December 2021
• Docket Number: No. 21-P-149,21-P-149
• Parties: FORE RIVER RESIDENTS AGAINST COMPRESSOR STATION v. OFFICE OF COASTAL ZONE MANAGEMENT & others.
• Court: Appeals Court of Massachusetts

179 N.E.3d 603

FORE RIVER RESIDENTS AGAINST COMPRESSOR STATION¹

v.OFFICE OF COASTAL ZONE MANAGEMENT & others.²

No. 21-P-149

Appeals Court of Massachusetts, Norfolk.

Argued October 15, 2021

Decided December 16, 2021

Michael H. Hayden, Boston, for the intervener.

Julie E. Green, Assistant Attorney General, for Office of Coastal Zone Management.

Nicholas C. Cramb, Boston, for Algonquin Gas Transmission, LLC, & another.

Present: Green, C.J., Singh, & Grant, JJ.

SINGH, J.

Algonquin Gas Transmission, LLC, and Maritimes & Northeast Pipeline, LLC (collectively, natural gas companies), seek to construct a compressor station in Weymouth as part of a project -- known as the Atlantic Bridge Project -- to expand their natural gas pipeline network. Following a determination by the Massachusetts Office of Coastal Zone Management (CZM) that construction of the compressor station would be consistent with the enforceable policies of Massachusetts's coastal zone management program, the mayor of Weymouth brought this action for judicial review in the Superior Court; Fore River Residents Against Compressor Station (FRRACS) intervened on the plaintiff's side. On motions to dismiss, a Superior Court judge concluded that CZM's determination was not reviewable under G. L. c. 30A, § 14, by an action in the nature of certiorari, or by a claim for declaratory judgment. Judgment entered in the defendants’ favor, and FRRACS appeals. We affirm.

Background. This case concerns two Federal statutes, the Natural Gas Act (NGA), 15 U.S.C. §§ 717 et seq., and the Coastal Zone Management Act (CZMA), 16 U.S.C. §§ 1451 et seq. The NGA governs "the transportation of natural gas in interstate commerce," 15 U.S.C. § 717(b), but also provides that nothing therein "affects the rights of States under ... the [CZMA]," 15 U.S.C. § 717b(d). Separately, the CZMA recognizes that "[t]here is a national interest in the effective management, beneficial use, protection, and development of the coastal zone," 16 U.S.C. § 1451(a), and establishes a process by which States may perform consistency reviews of certain proposed activities affecting the coastal zone. See 16 U.S.C. § 1456(c)(3)(A).

Construction of the proposed compressor station was subject to a Federal permitting process under the NGA, see 15 U.S.C. § 717f(c)(1)(A), with input provided by Massachusetts in the form of a consistency review under the CZMA, see 16 U.S.C. § 1456(c)(3)(A). Throughout the lengthy Federal permitting process and Massachusetts's consistency review, opponents of the compressor station brought multiple legal challenges to various decisions of State and Federal agencies. We briefly discuss the Federal permitting process before turning to the subject of this appeal, Massachusetts's consistency review under the CZMA.

1. Natural Gas Act. The NGA prohibits natural gas companies from constructing or extending any facilities for the transportation or sale of natural gas without first obtaining a certificate of public convenience and necessity (CPCN) from the Federal Energy Regulatory Commission (FERC). See 15 U.S.C. § 717f(c)(1)(A). Pursuant to the NGA, the natural gas companies applied to FERC for a CPCN in October 2015. On January 25, 2017, FERC issued the CPCN, conditioned on Massachusetts's consistency review under the CZMA. Opponents of the project brought a legal action challenging the issuance of the CPCN, but FERC's decision was affirmed in Weymouth v. Federal Energy Regulatory Comm'n, U.S. Ct. App., No. 17-1135, 2018 WL 6921213 (D.C. Cir. Dec. 27, 2018).

2. Coastal Zone Management Act. Separately, the CZMA encourages "states to exercise effectively their responsibilities in the coastal zone through the development and implementation of management programs." 16 U.S.C. § 1452(2). To that end, the CZMA authorizes States to create management programs -- subject to approval by the Federal Secretary of Commerce -- that "set[ ] forth objectives, policies, and standards to guide public and private uses of lands and waters in the coastal zone." 16 U.S.C. § 1453(12). See 16 U.S.C. §§ 1454, 1455(d).

Once a State has an approved coastal zone management program, the CZMA allows the State to perform consistency reviews of certain proposed activities affecting the coastal zone. See 16 U.S.C. § 1456(c)(3)(A). In particular,

"any applicant for a required Federal license or permit to conduct an activity, in or outside of the coastal zone, affecting any land or water use or natural resource of the coastal zone of that state shall provide ... a certification that the proposed activity complies with the enforceable policies of the state's approved program and that such activity will be conducted in a manner consistent with the program. At the same time, the applicant shall furnish to the state or its designated agency a copy of the certification, with all necessary information and data. Each coastal state shall establish procedures for public notice in the case of all such certifications and, to the extent it deems appropriate, procedures for public hearings in connection therewith."

Id. The CZMA further provides that the license or permit shall not be granted "until the state or its designated agency has concurred with the applicant's certification ... unless the Secretary [of Commerce], on his own initiative or upon appeal by the applicant, finds ... that the activity is consistent with the objectives of this chapter or is otherwise necessary in the interest of national security."³ Id.

Pursuant to G. L. c. 21A, § 4A, CZM was established to administer Massachusetts's approved coastal zone management program. The enforceable policies of that program are based on existing State statutes, regulations, and other legal authorities listed in the Massachusetts Office of Coastal Zone Management Policy Guide, https://www.mass.gov/files/documents/2016/08/qc/czm-policy-guide-october2011.pdf [https://perma.cc/3Q72-9HTG]. As relevant here, the statutes include the Wetlands Protection Act, G. L. c. 131, § 40, and the Waterways Act, G. L. c. 91, and an applicant's failure to obtain a permit required under either statute may serve as a basis for CZM to determine that the applicant's proposed activity would be inconsistent with the enforceable policies of Massachusetts's coastal zone management program. See 301 Code Mass. Regs. § 20.04(2)(d) (2013).

Pursuant to the CZMA, the natural gas companies applied to CZM for a consistency review in October 2015, at the same time that they applied to FERC for a CPCN. Thereafter, the natural gas companies agreed to toll CZM's deadline for issuing a consistency determination while the natural gas companies sought to obtain an order of conditions under the Wetlands Protection Act and a c. 91 waterways license. On November 12, 2019, after the required order of conditions and waterways license were obtained,⁴ CZM issued its determination that construction of the compressor station would be consistent with the enforceable policies of Massachusetts's coastal zone management program.

Discussion. 1. General Laws c. 30A, § 14. FRRACS seeks judicial review of CZM's consistency determination under G. L. c. 30A, § 14. The motion judge concluded that judicial review was not available under § 14 because FRRACS did not have the right to an agency hearing. On appeal, FRRACS concedes that it did not have the right to an agency hearing and instead argues that judicial review is available under § 14 because CZM had the opportunity, in its discretion, to hold a hearing.⁵ FRRACS's argument is unavailing; judicial review is not available under § 14 unless there is a right to an agency hearing.

General Laws c. 30A, § 14, provides that judicial review is available to any person "aggrieved by a final decision of any agency in an adjudicatory proceeding." " ‘Adjudicatory proceeding’ means a proceeding before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing." G. L. c. 30A, § 1. As our case law has long interpreted these provisions, judicial review is not available under § 14 unless there is "a right to an agency hearing." Springfield Hotel Ass'n, Inc. v. Alcoholic Beverages Control Comm'n, 338 Mass. 699, 702, 157 N.E.2d 219 (1959). See Hoffer v. Board of Registration in Med., 461 Mass. 451, 454-456, 961 N.E.2d 575 (2012) (plaintiff could not rely on § 14 where no statute or constitutional right required board to hold hearing); School Comm. of Hatfield v. Board of Educ., 372 Mass. 513, 514-516, 363 N.E.2d 237 (1977) (same).⁶

We are unpersuaded by FRRACS's argument to the contrary, which is based on the phrase "after opportunity for an agency hearing" in the statutory definition of "adjudicatory proceeding." G. L. c. 30A, § 1. Seizing on the word "opportunity," FRRACS argues that an adjudicatory proceeding is one in which an agency has the opportunity, in its discretion under its enabling statute, to hold a hearing. This argument reads the phrase "after opportunity for an agency hearing" out of context in contravention of established rules of statutory construction. See Bolster v. Commissioner of Corps. & Taxation, 319 Mass. 81, 84-85, 64 N.E.2d 645 (1946) ("None of the words of a statute is to be regarded as superfluous, but each is to be given its ordinary meaning without overemphasizing its effect upon the other terms appearing in the statute, so that the enactment considered as a whole shall constitute a consistent and harmonious statutory provision"). In context, an adjudicatory proceeding is one in which someone's rights "are required ... to be determined after opportunity for an agency hearing." G. L. c. 30A, § 1. If someone's rights are required to be determined after opportunity for an agency hearing, the agency has no discretion whether to hold a hearing; it must do so. Therefore, and as established by our case law, an adjudicatory...