Fore River Residents v. Fed. Energy Regulatory Comm'n
| Docket Number | 22-1146,22-1147 |
| Decision Date | 21 July 2023 |
| Parties | Fore River Residents Against the Compressor Station, et al., Petitioners v. Federal Energy Regulatory Commission, Respondent Algonquin Gas Transmission, LLC, and Interstate Natural Gas Association of America, Intervenors |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Argued April 20, 2023.
On Petitions for Review of Orders of the Federal Energy Regulatory Commission.
Michael H. Hayden argued the cause and filed the briefs for petitioners. Crystal Huff entered an appearance.
Jared Fish, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With him on the brief were Matthew R. Christiansen, General Counsel, and Robert H. Solomon, Solicitor.
Jeremy C. Marwell argued the cause for respondentintervenors Algonquin Gas Transmission, LLC, and the Interstate Natural Gas Association of America. With him on the joint brief were Michael Diamond, Paul Korman, Joan Dreskin, and James T Dawson.
Before: SRINIVASAN, Chief Judge, MILLETT, Circuit Judge, and TATEL, Senior Circuit Judge.
Fore River Residents Against the Compressor Station is an organization whose members live near a natural gas compressor station recently built in Weymouth, Massachusetts, a densely populated suburb of Boston. In these consolidated petitions, the Fore River Residents, along with two local residents, two municipalities, and Food and Water Watch, challenge actions taken by the Federal Energy Regulatory Commission allowing the compressor station to be built and to commence operation. Because we lack jurisdiction over the petitions, we dismiss them both.
Algonquin Gas Transmission, LLC, owns and operates the Algonquin natural gas pipeline that runs between New Jersey and northern Massachusetts, connecting much of New England to a pipeline network that runs as far as Texas. City of Boston Delegation v. FERC, 897 F.3d 241, 246 (D.C. Cir. 2018).
In 2017, the Federal Energy Regulatory Commission granted Algonquin a certificate of public convenience and necessity that allowed it and the owner of the neighboring Maritimes &Northeast pipeline to undertake a series of upgrades. See Town of Weymouth v. FERC, No. 17-1135, 2018 WL 6921213, at *1 (D.C. Cir. Dec. 27, 2018) (per curiam). Those upgrades are known collectively as the Atlantic Bridge Project ("Project"). As part of the Project Algonquin planned to build a new compressor station in Weymouth, Massachusetts. The compressor station would pressurize gas traveling north towards Maine.
The Town of Weymouth, as well as several residents and environmental groups, petitioned this court to overturn the Commission's certification decision for the Project. This court found no relevant error in the Commission's decision and denied the petition. See Town of Weymouth, 2018 WL 6921213, at *1. The Commission's certificate gave Algonquin until January 25, 2019, to complete construction of the Project.
The petitions before us seek review of two orders that followed the Commission's issuance of the certificate of public convenience and necessity.
The first challenged order concerns Algonquin's inability to meet the January 25, 2019, construction deadline. Under the terms of the certificate issued by the Commission, Algonquin needed state and local environmental and zoning approval for its construction projects. When Algonquin tried to obtain the relevant permits, two different Massachusetts administrative law judges stayed state administrative proceedings until Algonquin obtained federal court rulings determining whether those state and local environmental and zoning laws are preempted by the Natural Gas Act, 15 U.S.C. § 717 et seq. Algonquin subsequently obtained two separate declaratory judgments in federal court holding that the state and local laws were preempted. That administrative and litigation process took more than the two years that had been allotted for construction. See Algonquin Gas Transmission, LLC v. Town of Weymouth, 365 F.Supp.3d 147 (D. Mass. Feb. 11, 2019); Algonquin Gas Transmission, LLC v. Weymouth Conservation Comm'n, No. 17-10788, 2017 WL 6757544 (D. Mass. Dec. 29, 2017), aff'd, 919 F.3d 54 (1st Cir. March 19, 2019).
On the morning of December 26, 2018, with the January 2019 construction deadline looming and the final declaratory judgment action not yet resolved, Algonquin asked the Commission for a two-year extension of time to complete the Project. Shortly before Noon that same day, Algonquin's extension request was summarily approved by a local Commission Branch Chief.
The petitioners in this case are the City of Quincy, Massachusetts, the Town of Braintree, Massachusetts, Michael H. Hayden and Rebecca Haugh, two individuals whose homes are located close to the compressor, and two organizations, Food &Water Watch and Fore River Residents Against the Compressor Station. Because the claims of the petitioners are substantially identical, and for ease of reference, we refer to them collectively as the "Fore River Residents." The Fore River Residents (excluding the City of Braintree) filed with the Commission a petition for rehearing of the extension decision. They argued that (i) the Branch Chief lacked the power to grant the extension request, (ii) the short turnaround time evidenced unreasoned decision-making, and (iii) the public should have had a reasonable opportunity to submit adverse comments.[1]
After extensive briefing, the Commission denied rehearing. Order Denying Rehearing ("2020 Extension Rehearing Order"), 170 FERC ¶ 61144 (Feb. 21, 2020), J.A. 326. The Commission explained, first, that its regulations fully authorized the Director of the Office of Energy Projects to grant extensions of time, and that it was "appropriate" for the Director to have "further sub-delegated" that authority to the Branch Chief. Id. ¶¶ 7, 11, J.A. 328, 330.
Second, the Commission found nothing untoward about how quickly the extension was granted since the Branch Chief had "closely followed" the unfolding administrative proceedings and preemption litigation, and so already was aware of why Algonquin would need additional time. 2020 Extension Rehearing Order ¶ 38, J.A. 342.
Finally, the Commission agreed with the Branch Chief that there was good cause to grant the extension. The record contained no evidence of "any environmental changes in the project area or any new information" that would have led to a denial of the extension request. 2020 Extension Rehearing Order ¶ 17, J.A. 335. And Algonquin had "demonstrated good cause" by showing its diligence in pursuing state permits as quickly as possible. Id. ¶ 33, J.A. 341.
With the extension approved, Algonquin proceeded to build the Weymouth Compressor and the other remaining components of the Project. The Project was completed in September 2020.
The second order to which the Fore River Residents object came almost two years after the Extension Order, when construction was substantially complete. On September 16, 2020, Algonquin requested the Commission's permission to bring the now-built Weymouth Compressor and the rest of the Project online. Algonquin appended to its request proof of its environmental remediation of the construction site and its compliance with all other certificate conditions. See J.A. 357377. In a one-page order issued on September 24, 2020, a member of the Commission's staff granted Algonquin's request to start operations ("In-Service Authorization Order").
Neither Algonquin's request nor the Commission's authorization mentioned a serious incident that had occurred during the Weymouth Compressor's safety testing. On September 11, 2020, an O-ring gasket failed within the compressor, triggering "the manual operation of the emergency shutdown system and the release of approximately 169 thousand cubic feet * * * of natural gas." Pipeline &Hazardous Materials Safety Admin., Corrective Action Order at 1 (Oct. 1, 2020), J.A. 395.
Then just six days after the Commission's September 24th order authorizing operations, the Weymouth Compressor suffered another emergency shutdown when the "loss of power on a 129-[volt] circuit" led to the "release of approximately 195,000 cubic feet" of gas. ROOT CAUSE FAILURE ANALYSIS INVESTIGATION REPORT: WEYMOUTH COMPRESSOR STATION SEPTEMBER 30, 2020 BLOWDOWN EVENT at ii (Dec. 22, 2020), J.A. 743.
The Fore River Residents requested rehearing of the InService Authorization Order. [2] They argued that the two emergency shutdowns of the Weymouth Compressor, which the Commission had not considered when it authorized operations to begin, necessitated a new "situational assessment[.]" In-Service Authorization Rehearing Request at 3, J.A. 386. Such a review, the Fore River Residents argued, was especially important given the potentially harmful effects that the two large releases of natural gas could have had on nearby communities with heightened vulnerability to the Covid-19 pandemic. They also argued that, in light of the incidents, the Commission should "reexamine the * * * core circumstances concerning project need [and] project safety" underpinning the original Certificate Order. In-Service Authorization Rehearing Request at 5, J.A. 388.
The Fore River Residents' rehearing petition was initially denied by default when the Commission failed to take timely action on it. See generally Allegheny Def. Proj. v FERC, 964 F.3d 1, 16-17 (D.C. Cir. 2020) (en banc). Several months later, the Commission requested fresh briefing on the rehearing petition and asked the parties to address a number of specific questions, including whether it should "reconsider" the operation of the Weymouth Compressor "in light of any changed circumstances since the project was authorized[.]...
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