Town of Weymouth v. Mass. Dep't of Envtl. Prot.

• Decision Date: 31 August 2020
• Docket Number: No. 19-1794, No. 19-1803, No. 19-1797,19-1794
• Citation: 973 F.3d 143
• Parties: TOWN OF WEYMOUTH, MASSACHUSETTS ; Robert Hedlund, Mayor of Town of Weymouth; Patrick M. O'Connor, State Senator; Michael Smart, Vice President District Six; Kenneth J. Difazio, District Three Councilor; Jane Hackett, Councilor at Large ; Ed Harrington, District Five Councilor; Rebecca Haugh, District One Councilor; Arthur Mathews, District Four Councilor; Michael Molisse, Councilor at Large ; Scott Dowd, Conservation Commissioner; George Loring, Conservation Commissioner; Thomas Tanner, Conservation Commissioner; Frank Singleton, Conservation Commissioner; John Reilly, Conservation Commissioner; City of Braintree, Massachusetts; Town of Hingham, Massachusetts ; City of Quincy, Massachusetts, Petitioners, v. MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondent, Algonquin Gas Transmission, LLC, Intervenor. Elizabeth Moulds; Jennifer Mathian; Olivia Lanna; Priya Howell; Katherine Rogers; Michael Mullaley; Heather Kaas ; Katie McBrine; Janice Deyoung; A. Silvia Fabrizio; Kathleen Cronin, Petitioners, v. Massachusetts Department of Environmental Protection, Respondent, Algonquin Gas Transmission, LLC, Intervenor. Dorothy Anderson; Alice Arena ; Margaret Bellafiore; Wendy Cullivan; Susan Greene; Rebecca Haugh; Andrea Honore; Michael Lang; Curtis Nordgaard, M.D.; Thomas Pendergast ; Judy Roberts; Frank Singleton ; Betsy Sowers; Bernadette Wilson, Petitioners, v. Massachusetts Department of Environmental Protection, Respondent, Algonquin Gas Transmission, LLC, Intervenor.
• Court: U.S. Court of Appeals — First Circuit

973 F.3d 143

TOWN OF WEYMOUTH, MASSACHUSETTS ; Robert Hedlund, Mayor of Town of Weymouth; Patrick M. O'Connor, State Senator; Michael Smart, Vice President District Six; Kenneth J. Difazio, District Three Councilor; Jane Hackett, Councilor at Large ; Ed Harrington, District Five Councilor; Rebecca Haugh, District One Councilor; Arthur Mathews, District Four Councilor; Michael Molisse, Councilor at Large ; Scott Dowd, Conservation Commissioner; George Loring, Conservation Commissioner; Thomas Tanner, Conservation Commissioner; Frank Singleton, Conservation Commissioner; John Reilly, Conservation Commissioner; City of Braintree, Massachusetts; Town of Hingham, Massachusetts ; City of Quincy, Massachusetts, Petitioners,

v.MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondent,Algonquin Gas Transmission, LLC, Intervenor.

Elizabeth Moulds; Jennifer Mathian; Olivia Lanna; Priya Howell; Katherine Rogers; Michael Mullaley; Heather Kaas ; Katie McBrine; Janice Deyoung; A. Silvia Fabrizio; Kathleen Cronin, Petitioners,

v.Massachusetts Department of Environmental Protection, Respondent,Algonquin Gas Transmission, LLC, Intervenor.

Dorothy Anderson; Alice Arena ; Margaret Bellafiore; Wendy Cullivan; Susan Greene; Rebecca Haugh; Andrea Honore; Michael Lang; Curtis Nordgaard, M.D.; Thomas Pendergast ; Judy Roberts; Frank Singleton ; Betsy Sowers; Bernadette Wilson, Petitioners,

v.Massachusetts Department of Environmental Protection, Respondent,Algonquin Gas Transmission, LLC, Intervenor.

No. 19-1794

No. 19-1797

No. 19-1803

United States Court of Appeals, First Circuit.

August 31, 2020

Brian F. Bertram, J. Raymond Miyares, Katherine E. Stock, Miyares and Harrington, LLP, Joseph Callanan, Town Solicitor, Town of Weymouth, Nicole I. Taub, Town Solicitor, Town of Braintree, Kerry T. Ryan, Special Counsel, Town of Hingham, Bogle, DeAscentis & Coughlin, P.C., and Janet Petkun, Assistant City Solicitor, City of Quincy, on brief for petitioners Town of Weymouth, et. al.

Lawrence K. Kolodney, Adam J. Kessel, Natalie Galley, Eda Stark, Kayleigh E. McGlynn, and Fish & Richardson P.C. on brief for petitioners Moulds, et. al.

Michael H. Hayden and Morrison Mahoney LLP on brief for petitioners Anderson, et. al.

Seth Schofield, Senior Appellate Counsel, Office of the Attorney General of Massachusetts, Maura Healey, Attorney General for the Commonwealth of Massachusetts, Julie E. Green, Assistant Attorney General, Office of the Attorney General of Massachusetts, and Joshua Olszewski-Jubelirer, Assistant Attorney General, Office of the Attorney General of Massachusetts, on brief for respondent.

Jeremy C. Marwell, Joshua S. Johnson, Vinson & Elkins LLP, James T. Finnigan, and Rich May, P.C. on brief for intervenor.

Before Thompson, Lipez, and Kayatta, Circuit Judges.

PER CURIAM.

On June 3, 2020, this court issued an order and opinion in these consolidated matters vacating the grant of an air permit by the Massachusetts Department of Environmental Protection (DEP) for the proposed Weymouth compressor station and remanding to that agency to redo the Best Available Control Technology (BACT) analysis. See Town of Weymouth v. Mass. Dep't of Envtl. Prot., 961 F.3d 34, 58–59 (1st Cir. 2020). Algonquin Gas Transmission, LLC (the air-permit applicant and intervenor in this case) petitioned for panel rehearing as to the remedy only. For the following reasons, we grant Alqonquin's petition and revise our June 3 opinion to reflect that the remedy granted is remand without vacatur.

In our June 3 opinion,¹ we recognized that the decision to vacate the agency's decision or instead remand without vacating was "within our discretion as the reviewing court, and 'depend[ed] inter alia on the severity of the errors, the likelihood that they can be mended without altering the order, and on the balance of equities and public interest considerations.' " Id. at 58 (quoting Cent. Me. Power Co. v. FERC, 252 F.3d 34, 48 (1st Cir. 2001) ). After considering the parties' argument on these three factors, we concluded that both sides had "persuasive" arguments. Id. We went on to determine that additional factors weighed in favor of vacatur, most notably that DEP would expedite its review on remand so as not to exacerbate any harm from delaying the completion of the pipeline construction. Id. To that end, we gave DEP seventy-five days to complete its review or to show cause why additional time was needed. Id. at 59. That seventy-five-day period would have expired on August 17, fifty-four days after issuance of our mandate in ordinary course. See Fed. R. App. P. 40(a)(1) ("[A] petition for panel rehearing may be filed within 14 days after entry of judgment ...."); Fed. R. App. P. 41(b) ("The court's mandate must issue 7 days after the time to file a petition for rehearing expires ...."). Because DEP does not actually implement an order to vacate a permit decision until mandate issues, had mandate issued in normal course, Algonquin would have been precluded from proceeding with the project for no more than fifty-four days if it succeeded in the renewed permit proceedings.

DEP has now confirmed that it will be unable to meet that seventy-five-day deadline. In fact, DEP says it will be unable to complete its review, including administrative appeals, until January 19, 2021. As a result, even if Algonquin prevails in the renewed permit proceedings, the project will have been halted for no fewer than 142 days, assuming we were to issue mandate today. That hiatus will effectively prevent this new proposed infrastructure from coming on-line until the completion of "commission[ing]" six weeks after January 19, 2021. In short, permittable or not, the project will be out of operation for most of the New England and Canadian winter heating season, when demand for natural gas in the region is at its peak...