Algonquin Gas Transmission v. Weymouth Conservation Comm. ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1686
ALGONQUIN GAS TRANSMISSION, LLC,
Plaintiff, Appellee,
v.
WEYMOUTH, MASSACHUSETTS; WEYMOUTH CONSERVATION COMMISSION,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Kayatta, Circuit Judge,
Souter, Associate Justice,*
And Selya, Circuit Judge.
Rebekah Lacey, with whom J. Raymond Miyares, Bryan F. Bertram,
Miyares & Harrington, LLP, and Joseph Callanan, Town Solicitor,
Town of Weymouth, were on brief, for appellants.
Jeremy C. Marwell, with whom Michael B. Wigmore, Joshua S.
Johnson, Vinson & Elkins LLP, James T. Finnigan, and Rich May,
P.C. were on brief, for appellees.
March 19, 2019
* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
KAYATTA, Circuit Judge. Algonquin Gas Transmission, LLC
("Algonquin") seeks to build a natural gas compressor station in
Weymouth, Massachusetts as one component of Algonquin's larger
effort to improve its natural-gas delivery infrastructure in the
northeastern United States. Algonquin has received a certificate
of public convenience and necessity ("CPCN") from the Federal
Energy Regulatory Commission ("FERC"), but that certificate is
conditioned upon the receipt of a consistency determination from
the Commonwealth of Massachusetts pursuant to the Coastal Zone
Management Act ("CZMA"). To complete its CZMA review,
Massachusetts requires Algonquin to furnish a permit from the
Massachusetts Department of Environmental Protection ("MassDEP").
But MassDEP will not issue such a permit until the Town of Weymouth
approves the project under its local ordinance or a court finds
that ordinance preempted as applied to the project.
After unsuccessfully seeking Weymouth's approval to
begin construction, Algonquin repaired to the U.S. District Court
for the District of Massachusetts, from which it obtained a ruling
that Weymouth’s ordinance, as applied to the project, is indeed
preempted. Weymouth now appeals that ruling. For the following
reasons, we affirm.
I.
We briefly survey the regulatory topography, the
pertinent facts, and the procedural history in this case.
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A.
The federal Natural Gas Act ("NGA") governs the
transportation and sale of natural gas in interstate commerce and
the importation and exportation of natural gas in foreign commerce.
See 15 U.S.C. § 717(b). The NGA requires a prospective developer
to obtain a CPCN from FERC prior to constructing a jurisdictional
natural gas pipeline or ancillary facility. Id. § 717f(e). FERC
must issue a CPCN if the applicant demonstrates that it "is able
and willing . . . to conform to the provisions of [the Act] . . .
and regulations of [FERC]" and the proposed construction is
"required by the present or future public convenience and
necessity." Id. In issuing a CPCN, FERC also has the authority
to impose "reasonable terms and conditions as the public
convenience and necessity may require." Id.
The other federal statute relevant to this appeal, the
CZMA, provides grants of money to states that adopt federally
approved coastal-management programs. See generally 16 U.S.C.
§ 1455. Among other requirements, a coastal-management program
must define the "permissible land uses and water uses" and
promulgate "[b]road guidelines on priorities of uses" within the
state's coastal zones. Id. § 1455(d)(2). The CZMA limits FERC's
certificate-granting authority in at least one important way: It
prohibits FERC from granting a permit to conduct an activity that
will affect "any land or water use or natural resource of the
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coastal zone" until the state concurs with an applicant's
determination that the proposed activity "complies with the
enforceable policies of the state's approved [coastal-management
program]." Id. § 1456(c)(3)(A). The Massachusetts Office of
Coastal Zone Management ("Massachusetts OCZM") administers the
Commonwealth's CZMA program.
Two local laws also bear on this dispute. The
Massachusetts Wetlands Protection Act ("Massachusetts WPA")
provides performance standards for construction activities in
wetlands areas. See Mass. Gen. Laws ch. 131, § 40.1 The Act "sets
forth minimum standards only, 'leaving local communities free to
adopt more stringent controls.'" Lovequist v. Conservation Comm'n
of Dennis, 393 N.E.2d 858, 863 (Mass. 1979) (quoting Golden v.
Selectmen of Falmouth, 265 N.E.2d 573, 577 (Mass. 1970)). It also
requires a developer to file a notice of intention with and obtain
an order of conditions from the municipality in which the
construction is to be located prior to commencing construction.
Mass. Gen. Laws ch. 131, § 40. Finally, the Weymouth Wetlands
Protection Ordinance ("Weymouth WPO") generally requires a
developer to obtain a permit from the Weymouth Conservation
Commission before construction can begin in a wetlands area.
1Algonquin does not claim in this action that the statewide,
minimum requirements of the Massachusetts WPA are preempted as
applied to the compressor station.
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Weymouth, Mass., Code § 7-301(b). The Weymouth WPO gives the
Conservation Commission the authority to impose permit conditions
or deny an application in its entirety if it finds the project
will not meet Conservation Commission performance standards or
regulations. Id. § 7-301(k).
B.
Algonquin is a natural-gas transmission company that is
headquartered in Houston, Texas. In response to rising demand for
natural gas, Algonquin's proposed "Atlantic Bridge Project" aims
to increase the delivery capacity of its existing natural-gas
transmission system in the northeastern United States. Algonquin
seeks to construct a new compressor station -- an appurtenance
that is placed alongside a gas pipeline to maintain pressure and
gas-flow rates -- in Weymouth, Massachusetts as part of this
project. The proposed site is located within and adjacent to a
wetlands area. It is also situated in a coastal zone subject to
Massachusetts' coastal-management program.
In October 2015, Algonquin applied to FERC for a CPCN to
construct and operate the Atlantic Bridge Project. FERC completed
an environmental assessment of the proposed project pursuant to
the National Environmental Policy Act ("NEPA"), see generally 42
U.S.C. § 4332(C); 40 C.F.R. § 1501.4, in which it found that the
proposal would have no significant environmental impact.
Subsequently, on January 25, 2017, FERC issued Algonquin the CPCN.
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See Algonquin Gas Transmission, LLC Mars. & Ne. Pipeline, LLC
(Algonquin), 158 FERC ¶ 61,061, 2017 WL 383829, at *1 (Jan. 25,
2017). Significant to this appeal, FERC's CPCN requires that
Algonquin obtain a "determination of consistency with the [CZMA]"
from Massachusetts OCZM "[p]rior to construction of the Weymouth
Compressor Station." Id. at *64.
By the time Algonquin received the CPCN from FERC, it
had already applied for several Commonwealth authorizations needed
to obtain a determination of consistency from Massachusetts OCZM.
Pursuant to the Massachusetts WPA and the Weymouth WPO, Algonquin
sought authorization from the Weymouth Conservation Commission to
begin construction. The Conservation Commission denied
Algonquin's WPA and WPO permit applications. It found that
Algonquin had not sufficiently addressed hurricane and explosion
risks associated with the project. It also concluded that a
Weymouth WPO permit could not be adequately conditioned to
sufficiently mitigate the air, water, aesthetic, and recreational
impairments that would result from construction and operation of
the facility.
MassDEP has ultimate authority over Algonquin's WPA
application, so Algonquin appealed Weymouth's WPA denial to
MassDEP, seeking a superseding order of conditions. In a series
of rulings and orders, MassDEP agreed with Algonquin and reversed
the Massachusetts WPA permit denial. But Weymouth
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administratively appealed that reversal, pursuant to 310 Mass.
Code Regs. § 10.05(7)(j)(2), and MassDEP stayed the adjudication
of Weymouth's appeal (and thus the finalization of the WPA
authorization) until a court determines whether federal law
preempts Weymouth's denial of the project under the Weymouth WPO.
Massachusetts OCZM has yet to issue a consistency determination
for the proposed project and maintains that it cannot do so until
Algonquin proffers all relevant Commonwealth authorizations,
including a final Massachusetts WPA permit.2
To summarize: FERC has concluded its proceedings and
has issued Algonquin a permit that is conditioned on receipt of a
CZMA consistency determination from Massachusetts OCZM;
Massachusetts OCZM will not issue its determination until MassDEP
conclusively rules in favor of Algonquin on Weymouth's challenge
to the Massachusetts WPA approval; and MassDEP will not dispose of
that challenge until a court (or FERC) resolves Algonquin's
preemption challenge to the application of Weymouth's ordinance to
the compressor station.
Thus matters stood on May 4, 2017, when Algonquin
commenced this action in federal district court against the Town
2
Weymouth holds the position that MassDEP's stay is not an
impediment to Algonquin's receipt of a consistency determination
from Massachusetts OCZM. However, as will be addressed, infra,
Massachusetts OCZM appears to require the submission of a final
Massachusetts WPA permit, when applicable, before completing its
CZMA review.
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of Weymouth and the Weymouth Conservation Commission (collectively
"Weymouth"), seeking a declaratory judgment that the construction
and operation of the Weymouth Compressor Station is not subject to
the Weymouth WPO and enjoining enforcement of the permit denial
because the ordinance, as it applies to the compressor station, is
preempted under federal law. The district court entered summary
judgment for Algonquin, relying on both field preemption and
conflict preemption grounds in doing so. Algonquin Gas
Transmission, LLC v. Weymouth Conservation Comm'n, No. 17-10788-
DJC, 2017 WL 6757544, at *5–7 (D. Mass. Dec. 29, 2017). Weymouth's
appeal followed.
II.
Weymouth advances two reasons why we should reverse the
district court's entry of summary judgment for Algonquin. First,
it argues that the district court erred in not finding this action
to be time-barred. Second, as to the merits, Weymouth argues that
application of its ordinance to the proposed compressor station is
not foreclosed by federal law under theories of conflict and field
preemption. We consider each argument in turn.
A.
When a federal statute creates a cause of action for
damages or other legal relief but provides no applicable statute
of limitations, "we generally 'borrow' the most closely analogous
state limitations period." Graham Cty. Soil & Water Conservation
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Dist. v. U.S. ex rel. Wilson, 545 U.S. 409, 414 (2005) (citing N.
Star Steel Co. v. Thomas, 515 U.S. 29, 33–34 (1995)); see also
Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143,
147 (1987) (observing that "the Rules of Decision Act, 28 U.S.C.
§ 1652, requires application of state statutes of limitations
unless 'a timeliness rule drawn from elsewhere in federal law
should be applied.'" (quoting DelCostello v. Teamsters, 462 U.S.
151, 159 n.13 (1983))). Weymouth urges us to apply this general
rule to Algonquin's preemption claim and to look to Massachusetts'
certiorari statute, Mass. Gen. Laws ch. 249, § 4, for the
applicable statute of limitations. The certiorari statute
provides sixty days to correct errors in a judicial or quasi-
judicial proceeding that is not otherwise reviewable. See id.;
City of Revere v. Mass. Gaming Comm'n, 71 N.E.3d 457, 467 (Mass.
2017). Were we to adopt Weymouth's position, Algonquin's
preemption claim would be time-barred because Algonquin filed this
action in May 2017 -- nearly a year after the Conservation
Commission's WPO permit denial.
This general borrowing rule upon which Weymouth relies
has an important exception. In equitable suits arising under
federal law, we normally do not borrow a limitations period from
state law. See Holmberg v. Armbrecht, 327 U.S. 392, 395–96 (1946)
("Traditionally and for good reasons, statutes of limitation are
not controlling measures of equitable relief."); Russell v. Todd,
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309 U.S. 280, 287 (1940) ("The Rules of Decision Act does not apply
to suits in equity."); Union Carbide Corp. v. State Bd. of Tax
Comm'rs, 992 F.2d 119, 122–23 (7th Cir. 1993); see also Reed v.
United Transp. Union, 488 U.S. 319, 324 (1989) (citing Holmberg
with approval). Instead, the doctrine of laches applies. See
Russell, 309 U.S. at 287.
This exception for equitable actions is subject to one
caveat: Sometimes a claim for equitable relief is pursued to
vindicate a legal right. For example, federal law may create a
legal right subject to enforcement at both law (for damages) and
equity. In such a case, the limitations period applicable to the
claim at law may be applied to the equitable claim as well. See
Cope v. Anderson, 331 U.S. 461, 464 (1947) ("[E]quity will withhold
its relief in such a case where the applicable statute of
limitations would bar the concurrent legal remedy."); Russell, 309
U.S. at 289. Algonquin, however, brings no equitable sibling of
a concurrent claim at law. Rather, it solely pursues a
freestanding federal equitable claim unassociated with any
concurrent federal legal remedy that might supply (either directly
or by borrowing) any limitations period.
Weymouth's briefs nevertheless seem to argue by
implication that the Massachusetts certiorari statue is the
applicable concurrent legal remedy to which we should look.
However, we have found no case holding that a state legal remedy
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is the concurrent remedy at law for an equitable claim brought
under federal law, and for good reason: Such a holding would run
counter to the principle that claims are "concurrent" when "the
only difference between [them] is the relief sought." Grynberg v.
Total S.A., 538 F.3d 1336, 1353 (10th Cir. 2008). Moreover, the
very purpose of the concurrent-legal-remedy doctrine is "[t]o
prevent plaintiffs from making a mockery of the statute of
limitations by the simple expedient of creative labelling."
Gilbert v. City of Cambridge, 932 F.2d 51, 57 (1st Cir. 1991).
Filing a well-recognized federal claim rather than a state-law
claim cannot be fairly described as claim relabeling; rather, it
is the selection of one claim instead of another within the context
of a dual-sovereign system.
That Algonquin also requests declaratory relief pursuant
to the Declaratory Judgment Act, 28 U.S.C. § 2201, does not vitiate
the equitable nature of its suit. To "ascertain whether a
particular suit for declaratory relief is grounded in law or in
equity," we ask "whether, in the absence of the Declaratory
Judgment Act, the suit brought would have been legal or equitable
in nature." El Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 493
(1st Cir. 1992) (quoting Mowbray v. Moseley, Hallgarten, Estabrook
& Weeden, Inc., 795 F.2d 1111, 1114–15 (1st Cir. 1986)). Were
declaratory relief unavailable to Algonquin, Algonquin would be
left to pursue its negative injunction, premised on its claim that
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federal law "immunizes" it from local regulation, see Armstrong v.
Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015), as its
only federal means of redress. For this reason, Algonquin's
requested declaratory relief is also grounded in equity. Hence,
we apply laches.
Laches arguably might have barred Algonquin's preemption
claim if Weymouth had shown that Algonquin lacked reasonable
diligence in pursuing its federal rights to Weymouth's prejudice.
See K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 911 (1st
Cir. 1989) (citing Puerto Rican–Am. Ins. Co. v. Benjamin Shipping
Co., 829 F.2d 281, 283 (1st Cir. 1987)). However, Weymouth has
made no argument on appeal that laches should foreclose our
consideration of Algonquin's suit. And though Weymouth maintains
that Algonquin could have raised its preemption claim sooner, it
does not contend that Algonquin's delay was unreasonable or that
it prejudiced Weymouth in any way. Thus, we deem this argument
waived. See Rife v. One W. Bank, F.S.B., 873 F.3d 17, 19 (1st
Cir. 2017) ("It is well-settled that arguments not raised in an
opening brief . . . are deemed waived."). And even were it not
waived, nothing in the record before us indicates a lack of
diligence on Algonquin's part or any prejudice to Weymouth.
Accordingly, we affirm the district court's finding that
Algonquin's preemption claim is not time-barred.
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B.
The district court relied on field preemption and
conflict preemption principles in entering summary judgment for
Algonquin. See Algonquin Gas Transmission, LLC, 2017 WL 6757544,
at *5–7. Weymouth maintains that neither form of preemption should
preclude the application of its ordinance to the Weymouth
Compressor Station. Before we reach the merits of this issue,
however, we first consider whether Algonquin's preemption claim is
ripe for our review.
1.
"[T]he question of ripeness may be considered on a
court's own motion." Nat'l Park Hosp. Ass'n v. Dep't of Interior,
538 U.S. 803, 808 (2003). We do so now and, after careful
consideration, we find Algonquin's preemption claim ripe for
judicial resolution.
In determining whether an issue is ripe for our review,
we consider "(1) the fitness of the issues for judicial decision
and (2) the hardship to the parties of withholding court
consideration." Id. (citing Abbott Labs. v. Gardner, 387 U.S.
136, 149 (1967)). The fitness prong of this inquiry implicates
both constitutional and prudential justiciability concerns. See
McInnis-Misenor v. Me. Med. Ctr., 319 F.3d 63, 70 (1st Cir. 2003);
13B Charles Alan Wright et al., Federal Practice and Procedure
§ 3532.1 (3d ed. 2018). Article III principles require us first
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to ask "whether the claim involves uncertain and contingent events
that may not occur as anticipated or may not occur at all," thus
rendering any opinion we might offer advisory. Ernst & Young v.
Depositors Econ. Prot. Corp., 45 F.3d 530, 536 (1st Cir. 1995)
(quoting Mass. Ass'n of Afro-Am. Police, Inc. v. Bos. Police Dep't,
973 F.2d 18, 20 (1st Cir. 1992) (per curiam)); see also Roman
Catholic Bishop of Springfield v. City of Springfield, 724 F.3d
78, 89 (1st Cir. 2013). The prudential component of the fitness
test asks whether resolution of the case turns on "legal issues
not likely to be significantly affected by further factual
development." Ernst & Young, 45 F.3d at 536. On the other hand,
the hardship prong of this inquiry is purely prudential and
requires that we evaluate "whether the challenged action creates
a 'direct and immediate' dilemma for the parties." W.R. Grace &
Co.–Conn. v. EPA, 959 F.2d 360, 364 (1st Cir. 1992) (quoting Abbot
Labs., 387 U.S. at 152–53).
In City of Fall River, Massachusetts v. FERC, we found
a challenge to a FERC permit not ripe when the permit made the
commencement of construction contingent on the receipt of
authorizations from two other federal agencies. 507 F.3d 1, 4–5,
7–8 (1st Cir. 2007). In that case, it was uncertain whether the
approved work would be forthcoming because both agencies had
withheld approval and "ha[d] expressed serious reservations about
the project." Id. at 7. Thus, we found it likely that our
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resolution of the challenge to FERC's conditional approval "would
be advisory" and "irrelevant to the ultimate approvability of the
project." Id. at 8.
In this case, FERC's certificate also makes construction
contingent upon the approval of another agency. See Algonquin,
2017 WL 383829, at *64 ("Prior to construction of the Weymouth
Compressor Station, Algonquin shall file with the Secretary a copy
of [Massachusetts OCZM's] determination of consistency with the
Coastal Zone Management Act."). Unlike Fall River, however, this
case does not involve a challenge to the conditioned permit itself.
Rather, Algonquin seeks relief that would finally remove a
principal impediment that stands in the way of a final action by
that other agency.3 Moreover, Massachusetts OCZM has expressed no
serious reservation about issuing a determination of consistency
-- at least as far as we can tell based on the record before us -
- and MassDEP's initial decision to grant Algonquin a Massachusetts
3 Weymouth disputes that the stay of its challenge to
MassDEP's superseding order of conditions is an impediment to
Algonquin's receipt of a consistency determination from
Massachusetts OCZM. However, Massachusetts OCZM maintains that it
"cannot complete its review and issue a decision of consistency
with its enforceable program policies until all applicable
licenses, permits, certifications and other authorizations have
been issued by Massachusetts environmental agencies." And it is
not contested that the Massachusetts WPA is such an enforceable
policy under Massachusetts' coastal-management program. It
follows that MassDEP must complete its adjudication of Weymouth's
challenge before Massachusetts OCZM will complete its CZMA review.
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WPA permit indicates that a final disposition in Algonquin's favor
is, while not preordained, at least likely. Accordingly, our
resolution of Algonquin's preemption claim would be neither
"advisory" nor "irrelevant"; rather, it would apparently clear a
procedural logjam that would not otherwise be cleared. See
Weaver's Cove Energy, LLC v. R.I. Coastal Res. Mgmt. Council, 589
F.3d 458, 468–69 (1st Cir. 2009) (finding the final resolution of
"barriers to ultimate approval of the project" sufficient to
warrant our exercise of jurisdiction).
For these reasons, we find Algonquin's challenge to be
ripe.
2.
Algonquin urges us to hold, in accordance with the
district court's decision, that the NGA itself preempts the field
of regulation that includes any material application of the
Weymouth WPO to Algonquin's Atlantic Bridge Project. We decline
to go so far, preferring to decide the preemption issue on narrower
grounds, that of conflict preemption. See Weaver's Cove Energy,
LLC, 589 F.3d at 472. Conflict preemption exists when "'compliance
with both state and federal law is impossible,' or where 'the state
law "stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress."'" Oneok, Inc. v.
Learjet, Inc., 135 S. Ct. 1591, 1595 (2015) (quoting California v.
ARC Am. Corp., 490 U.S. 93, 100, 101 (1989)). We review the
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district court's preemption decision de novo. Weaver's Cove
Energy, LLC, 589 F.3d at 472.
Though the NGA itself does not expressly provide for a
comprehensive regulatory scheme pursuant to which FERC must
consider environmental, siting, and safety factors when issuing a
CPCN, FERC's regulations implementing that statute do provide such
a scheme. Prior to authorization, FERC is required to prepare an
environmental assessment under NEPA, 18 C.F.R. § 380.5(b)(1); see
also 42 U.S.C. § 4332; 40 C.F.R. § 1508.9. An environmental
assessment must discuss "the need for the proposal, . . .
alternatives [to the project], . . . [and] the environmental
impacts of the proposed action and alternatives." 40 C.F.R.
§ 1508.9(b). In addition, an environmental assessment must
include an analysis determining whether a full-blown environmental
impact statement must be prepared and whether the project will
have a significant environmental impact. Id. § 1508.9(a)(1). This
process entails FERC taking a close look at the "intensity" of the
project's environmental consequences, including "[t]he degree to
which the proposed action affects public health or safety,"
"proximity to . . . wetlands," the extent to which "the possible
effects on the human environment are highly uncertain or involve
unique or unknown risks," and "[w]hether the action threatens a
violation of Federal, State, or local law or requirements imposed
for the protection of the environment." 40 C.F.R. § 1508.27(b).
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In addition, FERC's regulations require a developer to
include in its application for a CPCN "all information necessary
to advise [FERC] fully concerning the . . . construction . . . for
which a certificate is requested." 18 C.F.R. § 157.5(a). This
includes information detailing the location and size of a proposed
facility and environmental reports detailing the projected local
and environmental consequences of the project. See 18 C.F.R.
§ 157.14(a)(6)–(7). Specifically, these environmental reports
must identify the wetlands that will be affected and available
mitigation measures, id. § 380.12(d)–(e), the land use, public
health, safety, and aesthetic consequences of the project, id.
§ 380.12(j), and any air quality impacts the proposal might have,
id. § 380.12(k). Then, pursuant to FERC's Certificate Policy
Statement, FERC determines whether a project is in the public
convenience and necessity by "balanc[ing] the public benefits
against the potential adverse consequences." Certification of New
Interstate Nat. Gas Pipeline Facilities, 88 FERC ¶ 61,227, 61,745
(1999), clarified, 90 FERC ¶ 61,128 (2000), further clarified, 92
FERC ¶ 61,094 (2000). This balancing weighs the economic vitality
of the project and any adverse effects on existing customers before
proceeding to "an independent environmental review" of the
project, whereby FERC considers the NEPA analysis, "the other
interests of landowners and the surrounding community," potential
"route[s] other than the one proposed by the applicant," and the
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goal of avoiding "unnecessary disruptions of the environment."
Id. ¶¶ 61,737; 61,745; 61,749.
Pursuant to this process, FERC -- in both its
environmental assessment and its CPCN -- considered essentially
the same environmental and safety concerns that the Conservation
Commission relied upon in denying Algonquin a Weymouth WPO permit.
FERC's environmental analysis addressed water resources, wetlands,
land use, recreational, air quality, and safety considerations
associated with the Atlantic Bridge Project and the Weymouth
Compressor Station. See Algonquin, 2017 WL 383829, at *10. And
in its CPCN, FERC specifically addressed environmental justice,
aesthetic, and air quality concerns regarding the siting of the
compressor station but found such impacts either not significant
or adequately addressable. Id. at *23–24, 37–39. The CPCN also
considered risks from flooding and impacts from hurricanes but
concluded that the station's proposed design would minimize these
risks. Id. at *26–27. It further concluded that the project would
have no direct impact on water resources or nearby wetlands since
no dredging or in-water construction at the Weymouth site would be
required. Id. at *30–34. Finally, as to risks from a potential
explosion, FERC's CPCN noted that Algonquin has committed to comply
with all applicable Pipeline and Hazardous Materials Safety
Administration regulations, thereby minimizing any such risk. Id.
at *53.
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Based on its economic and environmental review, and its
finding that there was no better site for the Weymouth Compressor
Station, id. at *26, FERC concluded that its construction and
operation would serve the public interest, id. at *5–6. The
Conservation Commission's order reaches the opposite conclusion
based on essentially the same environmental considerations. In so
doing, the Conservation Commission's permit denial certainly poses
a significant obstacle, indeed an effectively complete obstacle,
to FERC's ultimate determination that "public convenience and
necessity" "require" that the Weymouth Compressor Station be
built. 15 U.S.C. § 717f(e) (emphasis added). Accordingly, FERC's
issuance of a CPCN to Algonquin in this case conflict preempts the
Conservation Commission's WPO permit denial. See Oneok, Inc., 135
S. Ct. at 1595.
Weymouth seeks to avoid this result by arguing that
Algonquin breached a duty to "make a reasonable attempt to obtain
an approval before asserting that the local authority has
'prohibited' the project." Weymouth provides no support for the
existence of such a duty under federal law. To the extent that
Weymouth makes this argument in reliance on the portion of FERC's
certificate that "encourages cooperation between interstate
pipelines and local authorities," Algonquin, 2017 WL 383829,
at *12, we note that this provision does not require such
cooperation from Algonquin; it merely "encourages" it, perhaps to
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the satisfaction of FERC.4 But nothing in the FERC certificate or
any federal law to which Weymouth points would allow us to forgo
our preemption ruling on the basis that Algonquin did not try hard
enough to convince Weymouth to allow the project to proceed.
Weymouth also passingly invokes the doctrine of unclean
hands to suggest that we should decline to grant the declaratory
and injunctive relief that Algonquin seeks in this case. See
generally Texaco P.R., Inc. v. Dep't of Consumer Affairs, 60 F.3d
867, 880 (1st Cir. 1995). But even assuming (without deciding)
that Algonquin somehow owed an enforceable duty to Weymouth to
seek Weymouth's approval of the project under its ordinance,
Weymouth points to no evidence in the record to support its
proposition that Algonquin pursued a WPO permit in less than good
faith.5
Weymouth also argues that FERC's CPCN cannot have
preemptive effect in this case due to its "conditional" nature.
We reject this argument for essentially the same reasons we found
this dispute to be ripe. FERC has conclusively and finally weighed
4 If Weymouth means to raise a lack of cooperation as a
collateral challenge to Algonquin's compliance with FERC's
certificate, that issue is not before us.
5 On this point, Weymouth argues that entry of summary
judgment for Algonquin would be inappropriate before discovery has
been conducted. Weymouth, though, did not move to defer the
district court's consideration of the summary judgment motion to
allow for discovery pursuant to Fed. R. Civ. P. 56(d).
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the environmental, safety, and siting considerations associated
with this project in its CPCN, and FERC's determination that the
project is necessary and in the public interest is at this point
only "conditional" in that it awaits the conclusion of MassDEP's
proceeding and a consistency determination from Massachusetts
OCZM, both of which, in turn, hinge on our preemption decision.
Whether and to what extent the FERC permit is otherwise conditioned
we need not decide. Likely for similar, albeit unstated reasons,
we have, in at least one instance, readily assumed that FERC
approvals containing similar conditions precedent still have
preemptive force. See Weaver's Cove Energy, LLC, 589 F.3d at 472-
474.6 And the D.C. Circuit has applied this same assumption. See,
e.g., Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783
F.3d 1301, 1308, 1319–22 (D.C. Cir. 2015); Dominion Transmission,
Inc. v. Summers, 723 F.3d 238, 245 (D.C. Cir. 2013). On the other
side of the ledger, Weymouth directs us to no case holding that
such a FERC authorization -- final in all respects aside from
6
Weymouth argues that Weaver's Cove is inapposite because
concurrence with the state's coastal-management program could be
presumed for the court's preemption analysis there. This ignores
the fact that the Weaver's Cove project required additional
authorizations before construction could commence, including one
from the Army Corps of Engineers under the Rivers and Harbors Act,
33 U.S.C. § 403, which Weaver's Cove had not yet obtained at the
time of appeal. See Weaver's Cove Energy, LLC, 589 F.3d at 463,
468. Our decision in that case also noted an amendment to the
original plan that required additional "federal regulatory
approval" before construction could begin. See id. at 468.
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requiring the applicant to obtain additional approvals prior to
commencing construction -- lacks the ability to preempt contrary
state or local law.
With these considerations in mind, we hold that FERC's
CPCN conflict preempts the Conservation Commission's WPO permit
denial.
III.
For the foregoing reasons, we affirm the district
court's entry of summary judgment for Algonquin to the extent that
it held that FERC's issuance of a CPCN authorizing construction of
the Weymouth Compressor Station conflict preempts Weymouth’s
application of its ordinance to Algonquin's FERC-approved project.
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