Algonquin Gas Transmission v. Weymouth Conservation Comm.

United States Court of Appeals
For the First Circuit

No. 18-1686

ALGONQUIN GAS TRANSMISSION, LLC,

Plaintiff, Appellee,

v.

WEYMOUTH, MASSACHUSETTS; WEYMOUTH CONSERVATION COMMISSION,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Kayatta, Circuit Judge,
Souter, Associate Justice,*
And Selya, Circuit Judge.

Rebekah Lacey, with whom J. Raymond Miyares, Bryan F. Bertram,
Miyares & Harrington, LLP, and Joseph Callanan, Town Solicitor,
Town of Weymouth, were on brief, for appellants.
Jeremy C. Marwell, with whom Michael B. Wigmore, Joshua S.
Johnson, Vinson & Elkins LLP, James T. Finnigan, and Rich May,
P.C. were on brief, for appellees.

March 19, 2019

* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 KAYATTA, Circuit Judge. Algonquin Gas Transmission, LLC

("Algonquin") seeks to build a natural gas compressor station in

Weymouth, Massachusetts as one component of Algonquin's larger

effort to improve its natural-gas delivery infrastructure in the

northeastern United States. Algonquin has received a certificate

of public convenience and necessity ("CPCN") from the Federal

Energy Regulatory Commission ("FERC"), but that certificate is

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,

Massachusetts requires Algonquin to furnish a permit from the

Massachusetts Department of Environmental Protection ("MassDEP").

But MassDEP will not issue such a permit until the Town of Weymouth

approves the project under its local ordinance or a court finds

that ordinance preempted as applied to the project.

After unsuccessfully seeking Weymouth's approval to

begin construction, Algonquin repaired to the U.S. District Court

for the District of Massachusetts, from which it obtained a ruling

that Weymouth’s ordinance, as applied to the project, is indeed

preempted. Weymouth now appeals that ruling. For the following

reasons, we affirm.

I.

We briefly survey the regulatory topography, the

pertinent facts, and the procedural history in this case.

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 A.

The federal Natural Gas Act ("NGA") governs the

transportation and sale of natural gas in interstate commerce and

the importation and exportation of natural gas in foreign commerce.

See 15 U.S.C. § 717(b). The NGA requires a prospective developer

to obtain a CPCN from FERC prior to constructing a jurisdictional

natural gas pipeline or ancillary facility. Id. § 717f(e). FERC

must issue a CPCN if the applicant demonstrates that it "is able

and willing . . . to conform to the provisions of [the Act] . . .

and regulations of [FERC]" and the proposed construction is

"required by the present or future public convenience and

necessity." Id. In issuing a CPCN, FERC also has the authority

to impose "reasonable terms and conditions as the public

convenience and necessity may require." Id.

The other federal statute relevant to this appeal, the

CZMA, provides grants of money to states that adopt federally

approved coastal-management programs. See generally 16 U.S.C.

§ 1455. Among other requirements, a coastal-management program

must define the "permissible land uses and water uses" and

promulgate "[b]road guidelines on priorities of uses" within the

state's coastal zones. Id. § 1455(d)(2). The CZMA limits FERC's

certificate-granting authority in at least one important way: It

prohibits FERC from granting a permit to conduct an activity that

will affect "any land or water use or natural resource of the

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coastal zone" until the state concurs with an applicant's

determination that the proposed activity "complies with the

enforceable policies of the state's approved [coastal-management

program]." Id. § 1456(c)(3)(A). The Massachusetts Office of

Coastal Zone Management ("Massachusetts OCZM") administers the

Commonwealth's CZMA program.

Two local laws also bear on this dispute. The

Massachusetts Wetlands Protection Act ("Massachusetts WPA")

provides performance standards for construction activities in

wetlands areas. See Mass. Gen. Laws ch. 131, § 40.1 The Act "sets

forth minimum standards only, 'leaving local communities free to

adopt more stringent controls.'" Lovequist v. Conservation Comm'n

of Dennis, 393 N.E.2d 858, 863 (Mass. 1979) (quoting Golden v.

Selectmen of Falmouth, 265 N.E.2d 573, 577 (Mass. 1970)). It also

requires a developer to file a notice of intention with and obtain

an order of conditions from the municipality in which the

construction is to be located prior to commencing construction.

Mass. Gen. Laws ch. 131, § 40. Finally, the Weymouth Wetlands

Protection Ordinance ("Weymouth WPO") generally requires a

developer to obtain a permit from the Weymouth Conservation

Commission before construction can begin in a wetlands area.

1Algonquin does not claim in this action that the statewide,
minimum requirements of the Massachusetts WPA are preempted as
applied to the compressor station.

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Weymouth, Mass., Code § 7-301(b). The Weymouth WPO gives the

Conservation Commission the authority to impose permit conditions

or deny an application in its entirety if it finds the project

will not meet Conservation Commission performance standards or

regulations. Id. § 7-301(k).

B.

Algonquin is a natural-gas transmission company that is

headquartered in Houston, Texas. In response to rising demand for

natural gas, Algonquin's proposed "Atlantic Bridge Project" aims

to increase the delivery capacity of its existing natural-gas

transmission system in the northeastern United States. Algonquin

seeks to construct a new compressor station -- an appurtenance

that is placed alongside a gas pipeline to maintain pressure and

gas-flow rates -- in Weymouth, Massachusetts as part of this

project. The proposed site is located within and adjacent to a

wetlands area. It is also situated in a coastal zone subject to

Massachusetts' coastal-management program.

In October 2015, Algonquin applied to FERC for a CPCN to

construct and operate the Atlantic Bridge Project. FERC completed

an environmental assessment of the proposed project pursuant to

the National Environmental Policy Act ("NEPA"), see generally 42

U.S.C. § 4332(C); 40 C.F.R. § 1501.4, in which it found that the

proposal would have no significant environmental impact.

Subsequently, on January 25, 2017, FERC issued Algonquin the CPCN.

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See Algonquin Gas Transmission, LLC Mars. & Ne. Pipeline, LLC

(Algonquin), 158 FERC ¶ 61,061, 2017 WL 383829, at *1 (Jan. 25,

2017). Significant to this appeal, FERC's CPCN requires that

Algonquin obtain a "determination of consistency with the [CZMA]"

from Massachusetts OCZM "[p]rior to construction of the Weymouth

Compressor Station." Id. at *64.

By the time Algonquin received the CPCN from FERC, it

had already applied for several Commonwealth authorizations needed

to obtain a determination of consistency from Massachusetts OCZM.

Pursuant to the Massachusetts WPA and the Weymouth WPO, Algonquin

sought authorization from the Weymouth Conservation Commission to

begin construction. The Conservation Commission denied

Algonquin's WPA and WPO permit applications. It found that

Algonquin had not sufficiently addressed hurricane and explosion

risks associated with the project. It also concluded that a

Weymouth WPO permit could not be adequately conditioned to

sufficiently mitigate the air, water, aesthetic, and recreational

impairments that would result from construction and operation of

the facility.

MassDEP has ultimate authority over Algonquin's WPA

application, so Algonquin appealed Weymouth's WPA denial to

MassDEP, seeking a superseding order of conditions. In a series

of rulings and orders, MassDEP agreed with Algonquin and reversed

the Massachusetts WPA permit denial. But Weymouth

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administratively appealed that reversal, pursuant to 310 Mass.

Code Regs. § 10.05(7)(j)(2), and MassDEP stayed the adjudication

of Weymouth's appeal (and thus the finalization of the WPA

authorization) until a court determines whether federal law

preempts Weymouth's denial of the project under the Weymouth WPO.

Massachusetts OCZM has yet to issue a consistency determination

for the proposed project and maintains that it cannot do so until

Algonquin proffers all relevant Commonwealth authorizations,

including a final Massachusetts WPA permit.2

To summarize: FERC has concluded its proceedings and

has issued Algonquin a permit that is conditioned on receipt of a

CZMA consistency determination from Massachusetts OCZM;

Massachusetts OCZM will not issue its determination until MassDEP

conclusively rules in favor of Algonquin on Weymouth's challenge

to the Massachusetts WPA approval; and MassDEP will not dispose of

that challenge until a court (or FERC) resolves Algonquin's

preemption challenge to the application of Weymouth's ordinance to

the compressor station.

Thus matters stood on May 4, 2017, when Algonquin

commenced this action in federal district court against the Town

2
Weymouth holds the position that MassDEP's stay is not an
impediment to Algonquin's receipt of a consistency determination
from Massachusetts OCZM. However, as will be addressed, infra,
Massachusetts OCZM appears to require the submission of a final
Massachusetts WPA permit, when applicable, before completing its
CZMA review.

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of Weymouth and the Weymouth Conservation Commission (collectively

"Weymouth"), seeking a declaratory judgment that the construction

and operation of the Weymouth Compressor Station is not subject to

the Weymouth WPO and enjoining enforcement of the permit denial

because the ordinance, as it applies to the compressor station, is

preempted under federal law. The district court entered summary

judgment for Algonquin, relying on both field preemption and

conflict preemption grounds in doing so. Algonquin Gas

Transmission, LLC v. Weymouth Conservation Comm'n, No. 17-10788-

DJC, 2017 WL 6757544, at *5–7 (D. Mass. Dec. 29, 2017). Weymouth's

appeal followed.

II.

Weymouth advances two reasons why we should reverse the

district court's entry of summary judgment for Algonquin. First,

it argues that the district court erred in not finding this action

to be time-barred. Second, as to the merits, Weymouth argues that

application of its ordinance to the proposed compressor station is

not foreclosed by federal law under theories of conflict and field

preemption. We consider each argument in turn.

A.

When a federal statute creates a cause of action for

damages or other legal relief but provides no applicable statute

of limitations, "we generally 'borrow' the most closely analogous

state limitations period." Graham Cty. Soil & Water Conservation

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Dist. v. U.S. ex rel. Wilson, 545 U.S. 409, 414 (2005) (citing N.

Star Steel Co. v. Thomas, 515 U.S. 29, 33–34 (1995)); see also

Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143,

147 (1987) (observing that "the Rules of Decision Act, 28 U.S.C.

§ 1652, requires application of state statutes of limitations

unless 'a timeliness rule drawn from elsewhere in federal law

should be applied.'" (quoting DelCostello v. Teamsters, 462 U.S.

151, 159 n.13 (1983))). Weymouth urges us to apply this general

rule to Algonquin's preemption claim and to look to Massachusetts'

certiorari statute, Mass. Gen. Laws ch. 249, § 4, for the

applicable statute of limitations. The certiorari statute

provides sixty days to correct errors in a judicial or quasi-

judicial proceeding that is not otherwise reviewable. See id.;

City of Revere v. Mass. Gaming Comm'n, 71 N.E.3d 457, 467 (Mass.

2017). Were we to adopt Weymouth's position, Algonquin's

preemption claim would be time-barred because Algonquin filed this

action in May 2017 -- nearly a year after the Conservation

Commission's WPO permit denial.

This general borrowing rule upon which Weymouth relies

has an important exception. In equitable suits arising under

federal law, we normally do not borrow a limitations period from

state law. See Holmberg v. Armbrecht, 327 U.S. 392, 395–96 (1946)

("Traditionally and for good reasons, statutes of limitation are

not controlling measures of equitable relief."); Russell v. Todd,

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309 U.S. 280, 287 (1940) ("The Rules of Decision Act does not apply

to suits in equity."); Union Carbide Corp. v. State Bd. of Tax

Comm'rs, 992 F.2d 119, 122–23 (7th Cir. 1993); see also Reed v.

United Transp. Union, 488 U.S. 319, 324 (1989) (citing Holmberg

with approval). Instead, the doctrine of laches applies. See

Russell, 309 U.S. at 287.

This exception for equitable actions is subject to one

caveat: Sometimes a claim for equitable relief is pursued to

vindicate a legal right. For example, federal law may create a

legal right subject to enforcement at both law (for damages) and

equity. In such a case, the limitations period applicable to the

claim at law may be applied to the equitable claim as well. See

Cope v. Anderson, 331 U.S. 461, 464 (1947) ("[E]quity will withhold

its relief in such a case where the applicable statute of

limitations would bar the concurrent legal remedy."); Russell, 309

U.S. at 289. Algonquin, however, brings no equitable sibling of

a concurrent claim at law. Rather, it solely pursues a

freestanding federal equitable claim unassociated with any

concurrent federal legal remedy that might supply (either directly

or by borrowing) any limitations period.

Weymouth's briefs nevertheless seem to argue by

implication that the Massachusetts certiorari statue is the

applicable concurrent legal remedy to which we should look.

However, we have found no case holding that a state legal remedy

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is the concurrent remedy at law for an equitable claim brought

under federal law, and for good reason: Such a holding would run

counter to the principle that claims are "concurrent" when "the

only difference between [them] is the relief sought." Grynberg v.

Total S.A., 538 F.3d 1336, 1353 (10th Cir. 2008). Moreover, the

very purpose of the concurrent-legal-remedy doctrine is "[t]o

prevent plaintiffs from making a mockery of the statute of

limitations by the simple expedient of creative labelling."

Gilbert v. City of Cambridge, 932 F.2d 51, 57 (1st Cir. 1991).

Filing a well-recognized federal claim rather than a state-law

claim cannot be fairly described as claim relabeling; rather, it

is the selection of one claim instead of another within the context

of a dual-sovereign system.

That Algonquin also requests declaratory relief pursuant

to the Declaratory Judgment Act, 28 U.S.C. § 2201, does not vitiate

the equitable nature of its suit. To "ascertain whether a

particular suit for declaratory relief is grounded in law or in

equity," we ask "whether, in the absence of the Declaratory

Judgment Act, the suit brought would have been legal or equitable

in nature." El Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 493

(1st Cir. 1992) (quoting Mowbray v. Moseley, Hallgarten, Estabrook

& Weeden, Inc., 795 F.2d 1111, 1114–15 (1st Cir. 1986)). Were

declaratory relief unavailable to Algonquin, Algonquin would be

left to pursue its negative injunction, premised on its claim that

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federal law "immunizes" it from local regulation, see Armstrong v.

Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015), as its

only federal means of redress. For this reason, Algonquin's

requested declaratory relief is also grounded in equity. Hence,

we apply laches.

Laches arguably might have barred Algonquin's preemption

claim if Weymouth had shown that Algonquin lacked reasonable

diligence in pursuing its federal rights to Weymouth's prejudice.

See K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 911 (1st

Cir. 1989) (citing Puerto Rican–Am. Ins. Co. v. Benjamin Shipping

Co., 829 F.2d 281, 283 (1st Cir. 1987)). However, Weymouth has

made no argument on appeal that laches should foreclose our

consideration of Algonquin's suit. And though Weymouth maintains

that Algonquin could have raised its preemption claim sooner, it

does not contend that Algonquin's delay was unreasonable or that

it prejudiced Weymouth in any way. Thus, we deem this argument

waived. See Rife v. One W. Bank, F.S.B., 873 F.3d 17, 19 (1st

Cir. 2017) ("It is well-settled that arguments not raised in an

opening brief . . . are deemed waived."). And even were it not

waived, nothing in the record before us indicates a lack of

diligence on Algonquin's part or any prejudice to Weymouth.

Accordingly, we affirm the district court's finding that

Algonquin's preemption claim is not time-barred.

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 B.

The district court relied on field preemption and

conflict preemption principles in entering summary judgment for

Algonquin. See Algonquin Gas Transmission, LLC, 2017 WL 6757544,

at *5–7. Weymouth maintains that neither form of preemption should

preclude the application of its ordinance to the Weymouth

Compressor Station. Before we reach the merits of this issue,

however, we first consider whether Algonquin's preemption claim is

ripe for our review.

1.

"[T]he question of ripeness may be considered on a

court's own motion." Nat'l Park Hosp. Ass'n v. Dep't of Interior,

538 U.S. 803, 808 (2003). We do so now and, after careful

consideration, we find Algonquin's preemption claim ripe for

judicial resolution.

In determining whether an issue is ripe for our review,

we consider "(1) the fitness of the issues for judicial decision

and (2) the hardship to the parties of withholding court

consideration." Id. (citing Abbott Labs. v. Gardner, 387 U.S.

136, 149 (1967)). The fitness prong of this inquiry implicates

both constitutional and prudential justiciability concerns. See

McInnis-Misenor v. Me. Med. Ctr., 319 F.3d 63, 70 (1st Cir. 2003);

13B Charles Alan Wright et al., Federal Practice and Procedure

§ 3532.1 (3d ed. 2018). Article III principles require us first

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to ask "whether the claim involves uncertain and contingent events

that may not occur as anticipated or may not occur at all," thus

rendering any opinion we might offer advisory. Ernst & Young v.

Depositors Econ. Prot. Corp., 45 F.3d 530, 536 (1st Cir. 1995)

(quoting Mass. Ass'n of Afro-Am. Police, Inc. v. Bos. Police Dep't,

973 F.2d 18, 20 (1st Cir. 1992) (per curiam)); see also Roman

Catholic Bishop of Springfield v. City of Springfield, 724 F.3d

78, 89 (1st Cir. 2013). The prudential component of the fitness

test asks whether resolution of the case turns on "legal issues

not likely to be significantly affected by further factual

development." Ernst & Young, 45 F.3d at 536. On the other hand,

the hardship prong of this inquiry is purely prudential and

requires that we evaluate "whether the challenged action creates

a 'direct and immediate' dilemma for the parties." W.R. Grace &

Co.–Conn. v. EPA, 959 F.2d 360, 364 (1st Cir. 1992) (quoting Abbot

Labs., 387 U.S. at 152–53).

In City of Fall River, Massachusetts v. FERC, we found

a challenge to a FERC permit not ripe when the permit made the

commencement of construction contingent on the receipt of

authorizations from two other federal agencies. 507 F.3d 1, 4–5,

7–8 (1st Cir. 2007). In that case, it was uncertain whether the

approved work would be forthcoming because both agencies had

withheld approval and "ha[d] expressed serious reservations about

the project." Id. at 7. Thus, we found it likely that our

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resolution of the challenge to FERC's conditional approval "would

be advisory" and "irrelevant to the ultimate approvability of the

project." Id. at 8.

In this case, FERC's certificate also makes construction

contingent upon the approval of another agency. See Algonquin,

2017 WL 383829, at *64 ("Prior to construction of the Weymouth

Compressor Station, Algonquin shall file with the Secretary a copy

of [Massachusetts OCZM's] determination of consistency with the

Coastal Zone Management Act."). Unlike Fall River, however, this

case does not involve a challenge to the conditioned permit itself.

Rather, Algonquin seeks relief that would finally remove a

principal impediment that stands in the way of a final action by

that other agency.3 Moreover, Massachusetts OCZM has expressed no

serious reservation about issuing a determination of consistency

-- at least as far as we can tell based on the record before us -

- and MassDEP's initial decision to grant Algonquin a Massachusetts

3 Weymouth disputes that the stay of its challenge to
MassDEP's superseding order of conditions is an impediment to
Algonquin's receipt of a consistency determination from
Massachusetts OCZM. However, Massachusetts OCZM maintains that it
"cannot complete its review and issue a decision of consistency
with its enforceable program policies until all applicable
licenses, permits, certifications and other authorizations have
been issued by Massachusetts environmental agencies." And it is
not contested that the Massachusetts WPA is such an enforceable
policy under Massachusetts' coastal-management program. It
follows that MassDEP must complete its adjudication of Weymouth's
challenge before Massachusetts OCZM will complete its CZMA review.

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WPA permit indicates that a final disposition in Algonquin's favor

is, while not preordained, at least likely. Accordingly, our

resolution of Algonquin's preemption claim would be neither

"advisory" nor "irrelevant"; rather, it would apparently clear a

procedural logjam that would not otherwise be cleared. See

Weaver's Cove Energy, LLC v. R.I. Coastal Res. Mgmt. Council, 589

F.3d 458, 468–69 (1st Cir. 2009) (finding the final resolution of

"barriers to ultimate approval of the project" sufficient to

warrant our exercise of jurisdiction).

For these reasons, we find Algonquin's challenge to be

ripe.

2.

Algonquin urges us to hold, in accordance with the

district court's decision, that the NGA itself preempts the field

of regulation that includes any material application of the

Weymouth WPO to Algonquin's Atlantic Bridge Project. We decline

to go so far, preferring to decide the preemption issue on narrower

grounds, that of conflict preemption. See Weaver's Cove Energy,

LLC, 589 F.3d at 472. Conflict preemption exists when "'compliance

with both state and federal law is impossible,' or where 'the state

law "stands as an obstacle to the accomplishment and execution of

the full purposes and objectives of Congress."'" Oneok, Inc. v.

Learjet, Inc., 135 S. Ct. 1591, 1595 (2015) (quoting California v.

ARC Am. Corp., 490 U.S. 93, 100, 101 (1989)). We review the

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district court's preemption decision de novo. Weaver's Cove

Energy, LLC, 589 F.3d at 472.

Though the NGA itself does not expressly provide for a

comprehensive regulatory scheme pursuant to which FERC must

consider environmental, siting, and safety factors when issuing a

CPCN, FERC's regulations implementing that statute do provide such

a scheme. Prior to authorization, FERC is required to prepare an

environmental assessment under NEPA, 18 C.F.R. § 380.5(b)(1); see

also 42 U.S.C. § 4332; 40 C.F.R. § 1508.9. An environmental

assessment must discuss "the need for the proposal, . . .

alternatives [to the project], . . . [and] the environmental

impacts of the proposed action and alternatives." 40 C.F.R.

§ 1508.9(b). In addition, an environmental assessment must

include an analysis determining whether a full-blown environmental

impact statement must be prepared and whether the project will

have a significant environmental impact. Id. § 1508.9(a)(1). This

process entails FERC taking a close look at the "intensity" of the

project's environmental consequences, including "[t]he degree to

which the proposed action affects public health or safety,"

"proximity to . . . wetlands," the extent to which "the possible

effects on the human environment are highly uncertain or involve

unique or unknown risks," and "[w]hether the action threatens a

violation of Federal, State, or local law or requirements imposed

for the protection of the environment." 40 C.F.R. § 1508.27(b).

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 In addition, FERC's regulations require a developer to

include in its application for a CPCN "all information necessary

to advise [FERC] fully concerning the . . . construction . . . for

which a certificate is requested." 18 C.F.R. § 157.5(a). This

includes information detailing the location and size of a proposed

facility and environmental reports detailing the projected local

and environmental consequences of the project. See 18 C.F.R.

§ 157.14(a)(6)–(7). Specifically, these environmental reports

must identify the wetlands that will be affected and available

mitigation measures, id. § 380.12(d)–(e), the land use, public

health, safety, and aesthetic consequences of the project, id.

§ 380.12(j), and any air quality impacts the proposal might have,

id. § 380.12(k). Then, pursuant to FERC's Certificate Policy

Statement, FERC determines whether a project is in the public

convenience and necessity by "balanc[ing] the public benefits

against the potential adverse consequences." Certification of New

Interstate Nat. Gas Pipeline Facilities, 88 FERC ¶ 61,227, 61,745

(1999), clarified, 90 FERC ¶ 61,128 (2000), further clarified, 92

FERC ¶ 61,094 (2000). This balancing weighs the economic vitality

of the project and any adverse effects on existing customers before

proceeding to "an independent environmental review" of the

project, whereby FERC considers the NEPA analysis, "the other

interests of landowners and the surrounding community," potential

"route[s] other than the one proposed by the applicant," and the

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goal of avoiding "unnecessary disruptions of the environment."

Id. ¶¶ 61,737; 61,745; 61,749.

Pursuant to this process, FERC -- in both its

environmental assessment and its CPCN -- considered essentially

the same environmental and safety concerns that the Conservation

Commission relied upon in denying Algonquin a Weymouth WPO permit.

FERC's environmental analysis addressed water resources, wetlands,

land use, recreational, air quality, and safety considerations

associated with the Atlantic Bridge Project and the Weymouth

Compressor Station. See Algonquin, 2017 WL 383829, at *10. And

in its CPCN, FERC specifically addressed environmental justice,

aesthetic, and air quality concerns regarding the siting of the

compressor station but found such impacts either not significant

or adequately addressable. Id. at *23–24, 37–39. The CPCN also

considered risks from flooding and impacts from hurricanes but

concluded that the station's proposed design would minimize these

risks. Id. at *26–27. It further concluded that the project would

have no direct impact on water resources or nearby wetlands since

no dredging or in-water construction at the Weymouth site would be

required. Id. at *30–34. Finally, as to risks from a potential

explosion, FERC's CPCN noted that Algonquin has committed to comply

with all applicable Pipeline and Hazardous Materials Safety

Administration regulations, thereby minimizing any such risk. Id.

at *53.

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 Based on its economic and environmental review, and its

finding that there was no better site for the Weymouth Compressor

Station, id. at *26, FERC concluded that its construction and

operation would serve the public interest, id. at *5–6. The

Conservation Commission's order reaches the opposite conclusion

based on essentially the same environmental considerations. In so

doing, the Conservation Commission's permit denial certainly poses

a significant obstacle, indeed an effectively complete obstacle,

to FERC's ultimate determination that "public convenience and

necessity" "require" that the Weymouth Compressor Station be

built. 15 U.S.C. § 717f(e) (emphasis added). Accordingly, FERC's

issuance of a CPCN to Algonquin in this case conflict preempts the

Conservation Commission's WPO permit denial. See Oneok, Inc., 135

S. Ct. at 1595.

Weymouth seeks to avoid this result by arguing that

Algonquin breached a duty to "make a reasonable attempt to obtain

an approval before asserting that the local authority has

'prohibited' the project." Weymouth provides no support for the

existence of such a duty under federal law. To the extent that

Weymouth makes this argument in reliance on the portion of FERC's

certificate that "encourages cooperation between interstate

pipelines and local authorities," Algonquin, 2017 WL 383829,

at *12, we note that this provision does not require such

cooperation from Algonquin; it merely "encourages" it, perhaps to

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the satisfaction of FERC.4 But nothing in the FERC certificate or

any federal law to which Weymouth points would allow us to forgo

our preemption ruling on the basis that Algonquin did not try hard

enough to convince Weymouth to allow the project to proceed.

Weymouth also passingly invokes the doctrine of unclean

hands to suggest that we should decline to grant the declaratory

and injunctive relief that Algonquin seeks in this case. See

generally Texaco P.R., Inc. v. Dep't of Consumer Affairs, 60 F.3d

867, 880 (1st Cir. 1995). But even assuming (without deciding)

that Algonquin somehow owed an enforceable duty to Weymouth to

seek Weymouth's approval of the project under its ordinance,

Weymouth points to no evidence in the record to support its

proposition that Algonquin pursued a WPO permit in less than good

faith.5

Weymouth also argues that FERC's CPCN cannot have

preemptive effect in this case due to its "conditional" nature.

We reject this argument for essentially the same reasons we found

this dispute to be ripe. FERC has conclusively and finally weighed

4 If Weymouth means to raise a lack of cooperation as a
collateral challenge to Algonquin's compliance with FERC's
certificate, that issue is not before us.
5 On this point, Weymouth argues that entry of summary
judgment for Algonquin would be inappropriate before discovery has
been conducted. Weymouth, though, did not move to defer the
district court's consideration of the summary judgment motion to
allow for discovery pursuant to Fed. R. Civ. P. 56(d).

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the environmental, safety, and siting considerations associated

with this project in its CPCN, and FERC's determination that the

project is necessary and in the public interest is at this point

only "conditional" in that it awaits the conclusion of MassDEP's

proceeding and a consistency determination from Massachusetts

OCZM, both of which, in turn, hinge on our preemption decision.

Whether and to what extent the FERC permit is otherwise conditioned

we need not decide. Likely for similar, albeit unstated reasons,

we have, in at least one instance, readily assumed that FERC

approvals containing similar conditions precedent still have

preemptive force. See Weaver's Cove Energy, LLC, 589 F.3d at 472-

474.6 And the D.C. Circuit has applied this same assumption. See,

e.g., Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783

F.3d 1301, 1308, 1319–22 (D.C. Cir. 2015); Dominion Transmission,

Inc. v. Summers, 723 F.3d 238, 245 (D.C. Cir. 2013). On the other

side of the ledger, Weymouth directs us to no case holding that

such a FERC authorization -- final in all respects aside from

6
Weymouth argues that Weaver's Cove is inapposite because
concurrence with the state's coastal-management program could be
presumed for the court's preemption analysis there. This ignores
the fact that the Weaver's Cove project required additional
authorizations before construction could commence, including one
from the Army Corps of Engineers under the Rivers and Harbors Act,
33 U.S.C. § 403, which Weaver's Cove had not yet obtained at the
time of appeal. See Weaver's Cove Energy, LLC, 589 F.3d at 463,
468. Our decision in that case also noted an amendment to the
original plan that required additional "federal regulatory
approval" before construction could begin. See id. at 468.

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requiring the applicant to obtain additional approvals prior to

commencing construction -- lacks the ability to preempt contrary

state or local law.

With these considerations in mind, we hold that FERC's

CPCN conflict preempts the Conservation Commission's WPO permit

denial.

III.

For the foregoing reasons, we affirm the district

court's entry of summary judgment for Algonquin to the extent that

it held that FERC's issuance of a CPCN authorizing construction of

the Weymouth Compressor Station conflict preempts Weymouth’s

application of its ordinance to Algonquin's FERC-approved project.

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