Mass. Town Must Let Enbridge Unit Build Station, Judge Says

By Christine Powell, Law360
January 2, 2018

A Massachusetts federal judge sided with an Enbridge Inc. unit on Friday by holding that federal energy law preempted the town of Weymouth’s decision to deny Algonquin Gas Transmission LLC permission to build a compressor station there as part of the Atlantic Bridge natural gas pipeline project.

U.S. District Judge Denise J. Casper granted Algonquin’s motion for summary judgment in its lawsuit arguing that the town and the Weymouth Conservation Commission could not block plans to construct the compressor station because the federal government has the authority to approve interstate pipeline projects under the Natural Gas Act.

The Federal Energy Regulatory Commission gave the Atlantic Bridge project the green light, but the Weymouth Conservation Commission denied Algonquin’s request for permits for the compression station under a town wetlands protection ordinance, according to the order.

“When FERC has already ‘carefully reviewed the very’ proposal defendants ‘seek to further regulate and, after considering environmental impacts, authorized the project,’ the WPO as applied to the AB project ‘clearly collides with FERC’s delegated authority and is preempted,’” the judge wrote.

In particular, Judge Casper noted that when the conservation commission denied Algonquin’s request, it cited concerns about the negative effects of odors, noise and visual impacts, the excessive risk of explosions and possible hurricane-related damage to the facility.

However, the judge said, “as part of its environmental assessment, FERC had already considered these issues, determining that no environmental impact study was required to proceed, and after the statutory comment period issued a certificate to Algonquin authorizing construction and operation of the compressor station.”

With the order, Judge Casper also denied Weymouth and the Weymouth Conservation Commission’s motion to dismiss Algonquin’s lawsuit. While the town and the conservation commission had argued that Algonquin’s claim for declaratory relief was time-barred, the judge disagreed.

In a statement to Law360 on Tuesday, Enbridge said it was pleased with the judge’s order, which it said means an underlying administrative dispute between it and the Weymouth Conservation Commission can resume.

“We now look forward to the [administrative law judge] completing the administrative challenge proceeding and obtaining the remainder of our permits for the Weymouth compressor station,” the company added.

Representatives for the town and the conservation commission were not immediately available for comment.

The Atlantic Bridge project is an expansion of the Algonquin Gas Transmission and Maritimes & Northeast Pipeline interstate pipeline systems and calls for the construction of replacement pipeline, a new compressor station, a new meter and regulating station, and additional compression at existing compressor stations in New York, Connecticut, Rhode Island and Massachusetts.

Recently, FERC stood by its approval of the project, rejecting arguments from environmentalists and local municipalities that its environmental review was flawed.

Algonquin Gas Transmission LLC is represented by James T. Finnigan and Nathaniel C. Donoghue of Rich May PC.

The town of Weymouth and the Weymouth Conservation Commission are represented by town solicitor Joseph Callanan as well as by J. Raymond Miyares and Rebekah Lacey of Miyares & Harrington LLP.

The case is Algonquin Gas Transmission, LLC v. Weymouth Conservation Commission et al., case number 1:17-cv-10788, in the U.S. District Court for the District of Massachusetts.

–Additional reporting by Keith Goldberg and Melissa Lipman. Editing by Alanna Weissman.

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