by Chris Villani, Law360
May 29, 2018
The Federal Energy Regulatory Commission on Tuesday asked the D.C. Circuit to shoot down bids to review its approval of an Enbridge Inc. unit’s natural gas pipeline project, saying its environmental review of the project and a Massachusetts compressor station were proper.
The embattled Atlantic Bridge Project has been facing litigation from the town of Weymouth, Massachusetts, and a group of environmental and municipal groups who say FERC performed a shoddy environmental review before issuing a construction certificate in January 2017 to allow Enbridge to upgrade its Algonquin pipeline system. In urging the D.C. court to deny petitions to review the approval, FERC asserted its broad regulatory power under the Natural Gas Act, saying the pros of the project outweigh the potential cons.
“In its environmental assessment, the commission determined that the project, including the new compressor station, with appropriate mitigation measures, would not significantly affect the quality of the human environment,” Deputy Solicitor Lona T. Perry wrote in a brief on behalf of FERC to the appellate court.
“Ultimately, upon balancing the evidence of public benefits against the limited potential adverse effects of the project,” she said, “coupled with its finding of no significant environmental impact, the commission determined that project construction and operation would serve the public interest.”
The groups challenging the pipeline review said in a January brief that FERC made errors, including preparing a less stringent environmental assessment instead of an environmental impact statement and failing to assess the project’s greenhouse gas emission impacts in violation of the National Environmental Policy Act; failing to get word from Massachusetts officials that the project complied with the state’s federally blessed coastal management plan; and failing to independently guarantee the project could be operated safely in violation of the NGA.
The project has been challenged on multiple fronts. Weymouth, a community of about 55,000 people just south of Boston, claims Algonquin has not fulfilled a legal obligation to “reasonably cooperate” with the municipality, leading it to effectively block construction of the compressor station through local zoning laws.
An attorney for the town, J. Raymond Miyares of Miyares & Harrington LLP, said FERC’s argument to the D.C. Circuit ignores the Coastal Zone Management Act, which prohibits a federal license for construction that affects land in a costal zone, in this case the proposed compressor station site, until the state has issued what’s called a “consistency determination.”
“There still has been no such determination, and FERC’s license is therefore unambiguously in violation of the statute,” he told Law360. “By its plain terms, the statute does not allow FERC to issue a license that is conditioned on getting the required determination at some time in the future.”
Algonquin sued in Massachusetts federal court earlier this month in an attempt to end the stalemate.
The $1 billion Atlantic Bridge project is an expansion of the Algonquin Gas Transmission and Maritimes & Northeast Pipeline interstate pipeline systems and provides for the replacement of pipeline, a new compressor station, a new meter and regulating station, and additional compression capacity at existing stations in New York, Connecticut, Rhode Island and Massachusetts.
Algonquin first filed an application with FERC for the pipeline project in October 2015 and received approval following an evaluation and statutory public comment period, the suit says. Atlantic Bridge is aimed at expanding the capacity of Algonquin’s system in New York, Connecticut and Massachusetts and transporting additional volumes of natural gas, the company has said.
A FERC representative said the commission had no comment beyond what is stated in its brief to the D.C. Circuit and an Enbridge representative did not respond to requests for comment Tuesday afternoon.
Weymouth is represented by J. Raymond Miyares, Donna M. Brewer and Ivria Glass Fried of Miyares & Harrington LLP, as well as town solicitor Joseph Callanan.
The other plaintiffs are represented by Carolyn Elefant of the Law Offices of Carolyn Elefant PLLC.
FERC is represented by general counsel James P. Danly, Solicitor Robert H. Solomon, Deputy Solicitor Lona T. Perry, and attorney Anand R. Viswanathan.
Algonquin and Maritimes & Northeast are represented by Algonquin Gas Transmission associate general counsel Steven E. Hellman, and Anita R. Wilson, Michael B. Wigmore, Jeremy C. Marwell, Andrew N. Beach and Zachary J. Howe of Vinson & Elkins LLP.
The case is The Town of Weymouth et al. v. FERC, case number 17-1135, in the U.S. Court of Appeals for the District of Columbia Circuit.
–Additional reporting by Keith Goldberg and Christine Powell. Editing by Adam LoBelia.
Update: This story has been updated to include comment from Weymouth’s counsel.