Law Street Media

1st Circuit Vacates and Remands Air Pollution Permit for Natural Gas Pipeline

Bulldozers clearing land in a forest.

Land being levelled and cleared by yellow earth moving digger

On June 3rd, a panel of First Circuit Judges issued an opinion vacating an air permit issued by the Massachusetts Department of Environmental Protection (DEP) to Algonquin Gas Transmission, LLC for a proposed natural gas compressor station set to be built in Weymouth, Massachusetts.  The station would be a part of Algonquin’s “Atlantic Bridge Project,” a natural gas pipeline connecting the northeastern United States and Canada.  The opinion involved three consolidated cases, and “[t]he petitioners raise[d] a slew of arguments that DEP violated the Massachusetts CAA and related laws and regulations.”  The petitioners consisted of nearby municipalities and two citizen-petition groups. 

The court’s decision was based on the DEP’s alleged failure to follow “its own established procedures for assessing whether an electric motor was the Best Available Control Technology (BACT).”  A BACT is for reducing emissions, and is defined in 310 Mass. Code Regs. § 7.02(8)(a)(2).  The Environmental Protection Agency (EPA) has established a five-step “top down” approach for determining BACT, which the DEP has adopted.  The system requires the applicant to identify all control technologies, eliminate infeasible options, rank the remaining technologies, and evaluate the most effective options. 

In its air permit Algonquin applied the five-step test and “concluded that the SoLoNOx turbine was the BACT for NOx for the Weymouth station.  DEP agreed.”  One of petitioners arguments against the EPA was “it excluded consideration of using an electric motor instead of the SoLoNOx turbine, The court agreed with this argument stating, “The bottom line is this:  DEP’s established BACT protocol requires a cost-effectiveness analysis before eliminating a technology at Step 4, and the results of such an analysis do not strike us as so obvious as to overlook as harmless DEP’s failure either to follow that protocol or at least do enough to make it clear that following the protocol would eliminate the electric motor as a cost-effective option.” 

In determining the appropriate remedy, the court stated each “sides’ arguments are persuasive,” but because of additional considerations decided to vacate the permit.  One consideration was that the court believed “the administrative record as it exists now is insufficient for DEP to complete the BACT analysis.”  The court is allowing the “DEP to reopen the administrative record for the purpose of filling these evidentiary gaps.” 

The court also ordered if the DEP cannot reasonably conclude those proceedings and issue a decision within seventy-five days of the date of the opinion, then the DEP must consult with the other parties and make a filing showing cause why additional time is required.

Algonquin was an intervenor in the suit and filed several reply briefs.  Algonquin was represented by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo and Vinson & Elkins.  The three group of petitioners were represented by Miyares & Harrington, Fish & Richardson, Bogle DeAscentis & Coughlin, along with the Massachusetts Attorney General’s Office.

The three-judge panel consisted of Judge Thompson, Lipez and Kayatta.  Judge Kayatta delivered the opinion.

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