Justia U.S. 1st Circuit Court of Appeals Opinion Summaries

The First Circuit granted the petition filed by Algonquin Gas Transmission, LLC for rehearing as to remedy in this case where the First Circuit vacated the grant of an air permit by the Massachusetts Department of Environmental Protection (DEP) for a proposed natural gas compression station and remanded the case to that agency, holding that the remedy granted is remand without vacatur.On June 3, 2020, the First Circuit issued an opinion vacating the air permit for the proposed compressor station to be built as part of Algonquin's Atlantic Bridge Project, holding that the DEP did not follow its own established procedures for assessing whether an electric motor was the Best Available Control Technology (BACT). The Court's remedy was to vacate the air permit and remand to the DEP to redo the BACT. Given new developments that will materially the "balance of equities and public interest considerations," the First Circuit altered its remedy and revised its opinion to reflect that the remedy granted is remand without vacatur. View "Town of Weymouth v. Massachusetts Department of Environmental Protection" on Justia Law

The First Circuit vacated an air permit granted by the Massachusetts Department of Environmental Protection (DEP) for a proposed natural gas compression station set to be built in Weymouth, Massachusetts as part of Algonquin Gas Transmission, LLC's Atlantic Bridge Project, holding that the DEP did not follow its own established procedures for assessing whether an electric motor was the Best Available Control Technology (BACT).The Atlantic Bridge Project is a natural gas pipeline connecting the Northeastern United States and Canada. The 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. Petitioners, nearby municipalities and two citizen-petition groups, argued that DEP violated the CAA and related laws and regulations. The First Circuit (1) vacated the air permit and remanded to DEP for it to conduct further proceedings, holding that the DEP's final decision excluding an electric motor was arbitrary and capricious; and (2) resolved the remaining issues in favor of DEP. View "Town of Weymouth v. Massachusetts Department of Environmental Protection" on Justia Law

In this case involving a dispute between Portland Pipe Line Corporation (PPLC) and the City of South Portland (the City) the First Circuit certified three questions to the Maine Law Court because this clash raised important questions of state law preemption doctrine and statutory interpretation that are unresolved and may prove dispositive.The parties to this dispute were PPLC, a Maine corporation engaged in the international transportation of oil, and the City, which enacted a municipal zoning ordinance prohibiting the bulk loading of crude oil onto vessels in the City's harbor. The ordinance prevented PPLC from using its infrastructure to transport oil from Montreal to South Portland via underground pipelines. PPLC appealed the district court's dismissal of its claims, arguing that the ordinance was preempted by Maine's Coastal Conveyance Act and was in conflict with federal constitutional law. The First Circuit declined to address the federal questions, concluding that the case lacked controlling precedent and presented difficult legal issues that warranted certification to the Law Court. View "Portland Pipe Line Corp. v. City of South Portland" on Justia Law

The First Circuit affirmed the district court's judgment dismissing Plaintiffs' claims that Defendants' conduct violated section 2 of the Sherman Act, 15 U.S.C. 2, and various state antitrust and consumer protection laws, holding that the claims were barred by the filed-rate doctrine.Defendants were two large energy companies that purchased natural gas from producers, resold it to retail natural gas consumers throughout New England, and transported the natural gas along the interstate Algonquin Gas pipeline. Plaintiffs, a putative class of retail electricity customers in New England, brought this action alleging that Defendants strategically reserved excess capacity along the pipeline without using or reselling it, which ultimately resulted in higher retail electricity rates paid by New England electricity consumers. The district court dismissed the claims, concluding that they were barred by the filed-rate doctrine and, alternatively, for lack of antitrust standing and Plaintiffs' failure to plausibly allege a monopolization claim under the Sherman Act. The First Circuit affirmed without reaching the district court's alternative grounds for dismissal, holding that all of Plaintiffs' claims were barred by application of the filed-rate doctrine. View "Breiding v. Eversource Energy" on Justia Law

The First Circuit affirmed the decision of the district court ruling that the Town of Weymouth’s local ordinance, as applied to a project in which Algonquin Gas Transmission, LLC sought to build a natural gas compressor station in Weymouth, was preempted by the Federal Energy Regulatory Commission's (FERC) issuance of a certificate of public convenience and necessity (CPCN) authorizing construction of the Weymouth Compressor Station.Algonquin received a CPCN from FERC authorizing the project, but that certificate was 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 the Commonwealth required Algonquin to furnish a permit from Massachusetts Department of Environmental Protection, which, in turn, refused to issue such a permit until the Town of Weymouth approved the project under its local ordinance. Wemouth denied Algonquin’s permit applications. Algonquin ultimately commenced this action against Weymouth arguing that the local ordinance, as it applied to the compressor station, was preempted under federal law. The district court granted summary judgment for Algonquin. The First Circuit affirmed, holding that application of Weymouth’s ordinance to the proposed compressor station was foreclosed by federal law under the theory of conflict preemption. View "Algonquin Gas Transmission v. Weymouth Conservation Commission" on Justia Law

The Federal Energy Regulatory Commission issued to Tennessee Gas Pipeline Company, LLC a certificate of public convenience and necessity for a proposed project. The certificate was subject to filing of proof that Tennessee Gas received all applicable authorizations required under federal law. Tennessee Gas subsequently received from the Massachusetts Department of Environmental Protection (MassDEP) conditional certification for its proposed project. Petitioners filed a notice of claim for adjudicatory hearing to appeal the conditional certification. Tennessee Gas opposed the request for a hearing, arguing that once the agency had issued a conditional water quality certification, any further review must be pursued through a petition to the First Circuit. Tennessee Gas then filed suit in the District of Massachusetts seeking to bar MassDEP from engaging in further review. Petitioners filed this petition to preserve review of the conditional certification but asked the Court to reject their petition on the grounds that the Court’s review was premature until MassDEP completed its adjudicatory process. The First Circuit dismissed the petition for lack of subject matter jurisdiction because there was no order or action of MassDEP in connection with Tennessee Gas’s application for a water quality certification that the Court could review under 15 U.S.C. 717r(d)(1). View "Berkshire Environmental Action Team, Inc. v. Tennessee Gas Pipeline Co." on Justia Law

Since 2001, Cape Wind Associates, LLC has attempted to acquire the necessary permits and approvals for a wind power generation facility in Nantucket Sound. Under a settlement agreement, NSTAR Electric Company agreed to purchase one-quarter of Cape Wind’s output. The Massachusetts Department of Public Utilities (DPU) approved the contract. Plaintiffs - the Town of Barnstable, a non-profit advocacy group, and businesses and individuals residing near the proposed facility - filed this action in federal district court seeing an injunction and a declaratory judgment against officials of the DPU, the Massachusetts Department of Energy Resources, Cape Wind, and NSTAR. The district court dismissed the complaint, determining that the Eleventh Amendment barred the assertion of federal court jurisdiction over Plaintiffs’ claims. The First Circuit vacated the judgment of dismissal and remanded, holding (1) the district court erred in concluding that Plaintiffs’ claims fell outside the Ex parte Young exception to the Eleventh Amendment; and (2) the case was not moot or unripe. View "Town of Barnstable v. O'Connor" on Justia Law

The Pilgrim Nuclear Power Station in Massachusetts submitted an environmental impact statement (EIS) with its relicensing application in 2006. Before relicensing occurred, an earthquake and tsunami occurred off the coast of Japan, which hit the Fukushima Daiichi nuclear power plant. Less than three months later, Massachusetts moved to admit a contention and to reopen the Pilgrim record, arguing that Fukushima revealed new and significant information that the environmental impact analysis needed to address. The Atomic Safety and Licensing Board denied Massachusetts's motion. The Nuclear Regulatory Commission (NRC) denied the Commonwealth's petition for review, rejecting the Commonwealth's claims that the EIS was inadequate in light of the damage to Fukushima. The Commonwealth also petitioned for review from the NRC's vote to renew the license of the Pilgrim station. The First Circuit Court of Appeals denied the petition for review, holding that the NRC did not act arbitrarily or capriciously by (1) failing to require supplementation of the EIS in light of Fukushima; and (2) declining to hear Massachusetts' rulemaking petition and to complete all the post-Fukushima review before granting the license. View "Massachusetts v. U.S. Nuclear Regulatory Comm'n" on Justia Law

NextEra Energy Seabrook, LLC, which operated a nuclear power plant in Seabrook, New Hampshire, applied to renew its operating license. NextEra submitted a required environmental report that concluded that offshore wind electric generation was not a reasonable alternative to the extended licensing of Seabrook. Several environmental groups (collectively, Petitioners) questioned and sought a hearing on NextEra's environmental report. The Atomic Safety and Licensing Board admitted the contention, but the Nuclear Regulatory Commission (NRC) denied the admission of the contention, which resulted in Petitioners not being entitled to have a hearing on the merits about their contention that generation of electricity from offshore wind was a reasonable alternative source of baseload energy to the relicensing of Seabrook. The First Circuit Court of Appeals denied Petitioners' petition for review, holding (1) the NRC did not misapply case law interpreting the National Environmental Policy Act in formulating its contention-admissibility standard; and (2) NRC's conclusion that the contention was inadmissible was not arbitrary or capricious, and there was no basis in law to set it aside. View "Beyond Nuclear v. U.S. Nuclear Regulatory Comm'n" on Justia Law

After a generator failed, plaintiff ordered a replacement, believing that no permit was required for changes to its hydroelectric power facility, which is located on plaintiff's property on a non-navigable Massachusetts river. The facility consists of an 87-acre-foot reservoir, a 20-foot-high, 127-foot-long concrete gravity dam, two powerhouses, and appurtenant facilities. The Federal Energy Regulatory Commission concluded that plaintiff required a license under the Federal Power Act, 16 U.S.C. 817(1). The First Circuit affirmed, holding that the facility is in a stream that is subject to Commerce Clause jurisdiction, the proposed changes will constitute "post-1935 construction" under the Act, and the proposed changes will affect interstate commerce. The Commission's interpretation of "construction" as encompassing the work at issue was reasonable and substantial evidence supports a finding that small hydroelectric plants have a cumulative impact on interstate commerce.