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

• Decision Date: 03 June 2020
• Docket Number: No. 19-1797,No. 19-1794, No. 19-1803,19-1794
• Citation: 961 F.3d 34
• 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

961 F.3d 34

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.

June 3, 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.

KAYATTA, Circuit Judge.

These consolidated cases involve a proposed natural gas compressor station set to be built in Weymouth, Massachusetts, as part of Algonquin Gas Transmission, LLC's "Atlantic Bridge Project," a natural gas pipeline connecting the Northeastern United States and Canada. The Massachusetts Department of Environmental Protection (DEP) approved Algonquin's non-major comprehensive plan application for the station and granted the station's air permit, certifying its compliance with the Massachusetts Clean Air Act (CAA), Mass. Gen. Laws ch. 111, §§ 142A – 142F. Nearby municipalities and two citizen-petition groups challenge DEP's decision in this court, invoking original jurisdiction pursuant to the Natural Gas Act, 15 U.S.C. § 717r(d)(1). The petitioners raise a slew of arguments that DEP violated the Massachusetts CAA and related laws and regulations. Because we find that DEP did not follow its own established procedures for assessing whether an electric motor was the Best Available Control Technology (BACT), we vacate the air permit and remand to the agency to redo that analysis. We resolve the remaining issues in favor of DEP. See, e.g., Swajian v. Gen. Motors Corp., 916 F.2d 31, 35 (1st Cir. 1990) ("The remainder of this opinion will discuss other issues raised by the parties which are likely to recur [on remand] and should therefore be passed upon by us.").

I.

Algonquin, a natural gas transmission company based in Houston, Texas, proposed its Atlantic Bridge Project in response to rising demand for natural gas in the Northeastern United States and Canada. See Algonquin Gas Transmission, LLC v. Weymouth, 919 F.3d 54, 59 (1st Cir. 2019). Algonquin submitted its proposal for the project to the Federal Energy Regulatory Commission (FERC) in October 2015, id., and at the same time filed its air-permit application with DEP seeking the agency's approval of the project, see 310 Mass. Code Regs. § 7.02.

As with all natural gas pipelines, the Atlantic Bridge Project needs "[c]ompressor stations" to be "strategically placed along the pipeline to boost the system pressure to maintain required flow rates." FERC, An Interstate Natural Gas Facility on My Land?: What Do I Need to Know? 28 (2015), http://bit.ly.ezproxy.lib.ntust.edu.tw/2PBe0Tz. One of the compressor stations that Algonquin plans to build will be located in Weymouth, Massachusetts, near the Fore River Energy Center (an unrelated power plant) and King's Cove recreation area (a public park). Algonquin proposed to operate the Weymouth station using a "SoLoNOx" Solar Taurus 60 combustion turbine, which is a proprietary model of a Dry Low Nitrogen Oxide (NO_x) combustion turbine owned by Solar.¹ Dry Low NO_x turbines burn natural gas and reduce emissions of NO_x by operating at a lower combustion temperature. In layman's terms, the Weymouth station will burn a small amount of natural gas in order to generate pressure that will allow the bulk of the gas to flow through the pipeline.

FERC, for its part, approved Algonquin's plans for the Atlantic Bridge Project, including the Weymouth Station, and issued a "certificate of public convenience and necessity" under 15 U.S.C. § 717f(c) in January 2017. Algonquin Gas Transmission, 919 F.3d at 57, 59 (citing Algonquin Gas Transmission, LLC Mars. & Ne. Pipeline, LLC, 158 FERC ¶ 61061, 2017 WL 383829, at *1 (Jan. 25, 2017) ); see also Town of Weymouth v. FERC, No. 17-1135, 2018 WL 6921213, at *1 (D.C. Cir. Dec. 27, 2018) (per curiam) (denying Weymouth's petition challenging FERC's certificate). This approval came after FERC completed its environmental assessment pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C), finding that, "with appropriate mitigating measures," the project "would not constitute a major federal action significantly affecting the quality of the human environment." FERC's approval, however, is conditioned on Algonquin's compliance with the CAA (state and federal² ) as determined by DEP. Algonquin Gas Transmission, 2017 WL 383829, at *45 ; see also 15 U.S.C. § 717b(d)(2) ("[N]othing in this chapter affects the rights of States under ... the Clean Air Act...."); cf. Algonquin Gas Transmission, 919 F.3d at 57–60, 63–66 (dealing with DEP's approval under the Coastal Zone Management Act).

DEP staff reviewed Algonquin's air-permit application and issued a "draft permit" in March 2017 stating that the proposed Weymouth station was "in conformance with the Air Pollution Control regulations and current air pollution control engineering practice." DEP provided a public comment period on the draft permit, and in response to public concerns, Massachusetts Governor Charles Baker directed DEP and the Massachusetts Department of Public Health to prepare a health impact assessment (HIA) of the Weymouth station.

Frustrated by the protracted approval process, Algonquin sued DEP in the D.C. Circuit under 15 U.S.C. § 717r(d)(2) seeking to hurry along DEP's final decision. See Petition for Review, Algonquin Gas Transmission, LLC v. Mass. Dep't of Envtl. Prot., No. 18-1045 (D.C. Cir. Feb. 16, 2018). The result of that lawsuit was an out-of-court agreement between DEP and Algonquin to the following timeline: DEP promised to complete the HIA by January 2019 and to limit any subsequent adjudicatory hearings on the air permit to six months.

In keeping with the established timeline, DEP completed the HIA on January 4, 2019, "predict[ing] no substantial changes in health from direct exposures from the station itself with the exception of estimated sound levels during construction." The following week, DEP's regional Air Quality Section Chief issued a "Non-Major Comprehensive Air Quality Plan Approval" (i.e., air-permit approval) for the Weymouth station.

Petitioners in this case (described below) filed an administrative appeal to DEP's Office of Appeals and Dispute Resolution, raising a number of claims that the permit violated Massachusetts law. The Presiding Officer of that appeal dismissed some of these claims without opinion on April 11, 2019, and then, after a hearing, issued a full "Recommended Final Decision" on June 27, 2019. That decision affirmed the air permit with some revisions. On July 12, 2019, the DEP Commissioner issued a "Final Decision" adopting in full the Presiding Officer's Recommended Final Decision. In response to the Commissioner's request for clarification (on issues not relevant to this case), the Presiding Officer issued a "Recommended Final Decision on Reconsideration" on August 5, 2019, and the Commissioner adopted this decision in full on August 7, 2019.

The three groups of petitioners all challenge DEP's approval of the Weymouth station air permit. In case 19-1794 (docketed Aug. 8, 2019), petitioners include the Town of Weymouth, several nearby municipalities, and state and local officials. In cases 19-1797 and 19-1803 (both docketed Aug. 9, 2019), petitioners are eleven and fourteen (respectively) residents of these nearby municipalities. See Mass. Gen. Laws ch. 30A, § 10A (authorizing "not less than ten persons [to] intervene in any adjudicatory proceeding ... in which damage to the environment ... is or might be at issue"). We have...