Judge rules in favor of Enbridge on wetlands ordinance

U.S. District Judge Denise Casper has ruled in favor of Enbridge in relation to an appeal from the Town of Weymouth. In 2016, the Weymouth Conservation Commission denied Spectra-Enbridge’s application for a wetlands permit. Spectra-Enbridge appealed the decision, and since then, the appeal has bounced around the courts. This most recent decision is very disappointing. It’s not good news but we are in no way done. You can read the full decision below from Law360.

Mass. Town Loses Fight To Stop Enbridge Unit Pipeline
By Chris Villani

Law360, Boston (February 11, 2019, 5:13 PM EST) -- A division of Canadian energy provider Enbridge Inc. on Monday won its bid to stop a Massachusetts town from continuing to hold up a long-planned pipeline project after a federal judge ruled that the town's ongoing attempt to block the building of a compressor station is preempted by federal law.

The latest win for Algonquin Gas Transmission LLC in its bid to thwart efforts by the town of Weymouth, Massachusetts, to block a piece of the $1 billion Atlantic Bridge natural gas pipeline project came after Algonquin sued last year seeking to put an end to the lengthy squabble. The town has tried to stop construction of the compressor station, but Algonquin said its approval from the Federal Energy Regulatory Commission trumps Weymouth's local wetlands ordinance.

On Monday, U.S. District Judge Denise J. Casper granted Algonquin's summary judgment motion, ruling that the ordinance is not protected from federal preemption and that Weymouth's environmental concerns have been heard and adjudicated.

"As part of its environmental assessment, FERC considered potential environmental issues associated with the compressor station, including air quality, noise and visual effects, as well as possible alternative locations," Judge Casper said. "After conducting 13 open houses, four public scoping meetings attended by nearly 500 individuals and reviewing over 300 comment letters, FERC determined that 'the impacts associated with [the Atlantic Bridge project] can be mitigated to support a finding of no significant impact,' and issued a certificate to Algonquin authorizing construction and operation of the compressor station."

Algonquin said the Natural Gas Act leaves the power to approve in the hands of the federal government, but Weymouth said the federally approved Coastal Zone Management Act gives states the authority.

Judge Casper said there are some exceptions to federal preemption that fall under the CZMA, but ruled that the local wetlands ordinance at issue here does not fall within either exemption and therefore "it is not an enforceable policy protected from preemption pursuant to the rights granted to states by the CZMA."

"We are disappointed that Judge Casper did not look more deeply at the natural gas company's preemption claim. On the record before the court, it is impossible to know or analyze what provisions of Weymouth's zoning ordinance were under attack in this case, much less what provisions may be preempted by FERC's conditional order, which neither contemplates nor precludes application of such requirements," J. Raymond Miyares of Miyares and Harrington LLP, counsel for Weymouth, told Law360 on Monday.

"FERC's order specifically requires that a Chapter 91 license be obtained, and a certificate of zoning compliance is a routine requirement of Chapter 91 licensing, pursuant to both statutory and regulatory requirements," Miyares said.

A representative for Enbridge did not immediately respond to requests for comment Monday.

The South Shore town has been trying to block the building of the compressor station since Algonquin first sought FERC approval for its plan in 2015. Weymouth expressed concerns about the negative effects of odors, noise and visual impacts and the excessive risk of explosions and possible hurricane-related damage to the facility in its opposition to its construction before an environmental impact study could be done.

Judge Casper sided with Algonquin once before, in December 2017, similarly ruling that FERC had already assessed the situation and given the project the green light. Algonquin sued last May, seeking a permanent injunction to end the fight between it and the town, the suit that resulted in Monday's order from the same judge.

Weymouth's appeal of Judge Casper's first ruling reached the First Circuit earlier this month, where the town was met with a skeptical panel suggesting it was trying to ensnare Algonquin in a Catch-22 in which the final state approval was withheld while the town's suit was pending, as the town has said FERC's approval is not valid until Massachusetts officials rule that it is consistent with state regulations under the CZMA.

"The state and municipality can set up the wonderful little trap," said U.S. Circuit Judge William J. Kayatta during oral arguments. "The state can say, 'We are not going to pull the trigger until the town proceeding is over,' but you argue the issue is preempted because the state has not pulled the trigger."

FERC granted its approval for the compressor station, which Algonquin says is critical to the project, in January 2017. The commission has stood by its approval, rejecting arguments from environmentalists and local municipalities, including Weymouth, that its environmental review was flawed.

Algonquin brought its first suit against Weymouth in May of that year and its second almost exactly one year later.

Compressor stations are used to provide the pressure that pipelines need to carry natural gas over long distances. The Atlantic Bridge project 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 Connecticut, Massachusetts, New York and Rhode Island.

The compressor proposal was first put to Weymouth residents in January 2015. Spectra Energy, which was acquired by Enbridge last year, offered Weymouth $47 million to approve the compressor in 2016, but Republican Mayor Robert Hedlund turned it down.

Algonquin is represented by James T. Finnigan of Rich May PC, and Michael B. Wigmore and Jeremy C. Marwell of Vinson & Elkins LLP.

Weymouth is represented by town solicitor Joseph Callanan and Bryan F. Bertram and J. Raymond Miyares of Miyares and Harrington LLP.

The case is Algonquin Gas Transmission LLC v. The Town of Weymouth, Massachusetts, case number 1:18-cv-10871, in U.S. District Court for the District of Massachusetts.

--Editing by Stephen Berg.