Providence v. Energy Facilities

• Decision Date: 27 January 2009
• Docket Number: SJC-10214.
• Citation: 453 Mass. 135,899 N.E.2d 829
• Parties: PROVIDENCE AND WORCESTER RAILROAD COMPANY v. ENERGY FACILITIES SITING BOARD & another.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

899 N.E.2d 829

453 Mass. 135

PROVIDENCE AND WORCESTER RAILROAD COMPANY v. ENERGY FACILITIES SITING BOARD & another.¹

SJC-10214.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued November 3, 2008.

Decided January 27, 2009.

Gerald J. Petros, Providence (David S. Rosenzweig, Boston, with him) for the plaintiff.

Stephen J. Brake, Boston (Sarah P. Kelly with him) for the intervener.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

COWIN, J.

In this case we are asked to decide whether G.L. c. 164, §§ 69G and 69S, give the Energy Facilities Siting Board (board) the power to authorize an oil pipeline company to take land by eminent domain for a pipeline that is not "new," a question of first impression in Massachusetts.² We hold, contrary to the decision of the board, that the statutory scheme allows the board to authorize a taking only in connection with the construction of new oil pipelines, not for pipelines already in existence, and does not authorize the board to do so in the circumstances of the present case.

Statutory framework. A brief explanation of the relevant statutory provisions provides the necessary framework. The board is an independent agency established by the Legislature within the Department of Public Utilities.³ See G.L. c. 164, § 69H. "[Its] governing mandate . . . is to `provide a reliable energy supply for the commonwealth with a minimum impact on the environment at the lowest possible cost.'" Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 448 Mass. 45, 47, 858 N.E.2d 294 (2006), quoting G.L. c. 164, § 69H.

General Laws c. 164, § 69S, permits "[a]ny company [to] petition the board for the right to exercise the power of eminent domain with respect to oil pipelines specified and contained in the proposed notice of intention submitted in accordance with [G.L. c. 164, § 69J,]⁴ if such company is unable to reach agreement with the owners of land for acquisition of any necessary estate or interest in land." Following notice and a public hearing, "[t]he board may . . . authorize the company to take by eminent domain under [G.L. c. 79] such lands necessary for the construction of the oil pipeline as required in the public interest, convenience and necessity." Id.

The power to authorize a taking by eminent domain provided in § 69S applies "only to oil pipelines which are [oil⁵] facilities as defined in [G.L. c. 164, § 69G]." Id. Section 69G defines an "[o]il facility," in relevant part, as "any new pipeline for the transportation of oil or refined oil products which is greater than one mile in length except restructuring, rebuilding, or relaying of existing pipelines of the same capacity."

Facts and proceedings. The relevant facts are not in dispute. Since 1931, Mobil Pipe Line (Mobil) and its predecessors have owned and operated a common carrier pipeline transporting petroleum products from East Providence, Rhode Island, to Springfield. The present dispute concerns a 120-foot section of the pipeline that passes underneath a railroad bed in Oxford that the Providence and Worcester Railroad (P & W) owns. From the time of the pipeline's construction, P & W or its predecessors have leased an easement covering this 120-foot strip of land to Mobil or its predecessors, which has allowed for the pipeline's continued operation. The most recent such lease was entered into between Mobil and P & W in 1977. The lease provided for an initial term of five years, renewable up to five times, each for an additional five-year term, at Mobil's option. Mobil exercised the last of its renewal options in 2002. The lease was not replaced, and the parties subsequently were unable to reach an agreement on the purchase of a permanent easement over the land that the pipeline occupies. P & W made clear to Mobil its intent to treat Mobil as a trespasser—and to evict Mobil from P & W's property—should the parties ultimately fail to settle.

Shortly before the lease was to expire, Mobil petitioned the board, pursuant to G.L. c. 164, § 69S, for authorization to take an easement for its pipeline by eminent domain. Mobil also commenced an action in the Superior Court, requesting a preliminary injunction to prevent P & W from evicting Mobil pending the board's eminent domain decision. A judge in the Superior Court granted Mobil's request for injunctive relief, but conditioned the entry of the injunction on Mobil's filing an application with the board either for an advisory opinion regarding the applicability of G.L. c. 164, § 69S, to its dispute with P & W, or for a determination whether the board had jurisdiction over this section of the pipeline.⁶

Mobil subsequently filed a petition for determination of jurisdiction with the board. See 980 Code Mass. Regs. § 2.08 (2002). The board granted P & W leave to intervene in the proceedings, see 980 Code Mass. Regs. § 1.05(1) (2002), and P & W filed an opposition to Mobil's petition for determination of jurisdiction, as well as a motion to dismiss Mobil's original petition for the exercise of eminent domain. Before considering Mobil's eminent domain petition and P & W's corresponding motion to dismiss, the board decided to consider Mobil's petition for determination of jurisdiction.

Both parties submitted arguments, which we discuss later in more detail. Briefly, P & W maintained that the board had no power to authorize the condemnation of an easement because Mobil's pipeline was not "new," as P & W claimed the statute requires. P & W also argued that the board lacked the power to authorize a taking for a section of the pipeline less than one mile in length. Mobil contended that the statute gave the board the power to authorize the taking of land for "existing pipelines" if they were to be "restructur[ed], rebuil[t], or relay[ed]," and claimed that its pipeline therefore qualified. Following a hearing, a "presiding officer"⁷ issued a tentative decision for board approval, agreeing with P & W that the board lacked power to authorize a taking on Mobil's behalf.

Mobil submitted comments on the tentative decision, and subsequently another hearing was held before the full board. Following deliberations, the board rejected the tentative decision and directed the presiding officer to prepare a new tentative decision upholding the board's authority. The hearing officer did so, and the board later voted to adopt this second tentative decision, with minor changes, as its final decision.

In its final decision, the board⁸ recognized "the ordinary meaning of the word `new,'" but concluded that "this does not resolve the controversy . . . because the words of a statute will not be read literally if to do so would be inconsistent with the legislative intent." It rejected the notion that the Legislature had intentionally denied the board "authority to grant eminent domain for existing oil pipeline facilities." Rather, the board suggested that "the Legislature simply failed to consider th[e] issue but . . . plainly would have provided the [board] the power of eminent domain concerning existing oil facilities." The board concluded that the Legislature had enacted a "comprehensive scheme of legislation concerning the siting of energy facilities and the security of the [Commonwealth's] energy requirements in the future," and that "[l]ogically this scheme should include [the power to authorize a taking by eminent domain for] both existing and new oil pipelines." The board decided that an interpretation of the statute that would prevent it from authorizing a taking to preserve an existing pipeline that is vital to the Commonwealth's energy supply would engender an "absurd result."

P & W filed a petition for appeal from the board's final decision to a single justice of this court.⁹ See G.L. c. 164, § 69P, and G.L. c. 25, § 5. The single justice allowed Mobil's motion to intervene, and reserved and reported the case for consideration by the full court. We now reverse the board's decision for the reasons we shall discuss.

Discussion. 1. Propriety of appeal. Before considering the merits, we first must determine whether this appeal is properly before us. Under G.L. c. 25, § 5 (which G.L. c. 164, § 69P, incorporates by reference), an appeal is permitted only from a "final decision, order or ruling" of the board. See Boston Gas Co. v. Department of Pub. Utils., 368 Mass. 780, 785-786, 336 N.E.2d 713 (1975). Although the board has styled its decision as "final," finality is "determined `on the footing of its substance and not of its name.'" Fitchburg Gas & Elec. Light Co. v. Department of Pub. Utils., 394 Mass. 671, 677, 477 N.E.2d 372 (1985), quoting Check v. Kaplan, 280 Mass. 170, 176, 182 N.E. 305 (1932). A decision is "final" for the purposes of taking an immediate appeal if it completely adjudicates the rights of the parties, leaving nothing further to be decided. See Pollack v. Kelly, 372 Mass. 469, 475-476, 362 N.E.2d 525 (1977).

Here, the board has not yet decided whether it will authorize a taking of P & W's property by eminent domain. It has decided only that it has the statutory authority to do so, if it determines (after a later hearing) that the taking is "required in the public interest, convenience and necessity." G.L. c. 164, § 69S. Such a decision is not "final" for the purposes of judicial review under G.L. c. 25, § 5. P & W's appeal is therefore premature. Nonetheless, we express our views on the question of law the parties have submitted to us because "the case has been fully briefed on the merits, . . . there is a public interest in obtaining a prompt answer to the question, and . . . the answer . . . is reasonably clear." Brown v. Guerrier, 390 Mass. 631, 632, 457 N.E.2d 630 (1983).

2. The board's eminent domain authority. Our review of the board's decision, governed by both G.L. c. 164, § 69P, and G.L. c. 25, § 5, is "limited, although not perfunctory." See Stow Mun. Elec. Dep't v. Department of Pub. Utils., 426 Mass....