United States Court of Appeals
For the First Circuit
No. 19-1794
TOWN OF WEYMOUTH, MASSACHUSETTS; ROBERT HEDLUND, Mayor of Town
of Weymouth; PATRICK M. O'CONNOR, State Senator; MICHAEL SMART,
Vice President District Six; KENNETH J. DIFAZIO, District Three
Councilor; JANE HACKETT, Councilor at Large; ED HARRINGTON,
District Five Councilor; REBECCA HAUGH, District One Councilor;
ARTHUR MATHEWS, District Four Councilor; MICHAEL MOLISSE,
Councilor at Large; SCOTT DOWD, Conservation Commissioner;
GEORGE LORING, Conservation Commissioner; THOMAS TANNER,
Conservation Commissioner; FRANK SINGLETON, Conservation
Commissioner; JOHN REILLY, Conservation Commissioner; CITY OF
BRAINTREE, MASSACHUSETTS; TOWN OF HINGHAM, MASSACHUSETTS; CITY
OF QUINCY, MASSACHUSETTS,
Petitioners,
v.
MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondent,
ALGONQUIN GAS TRANSMISSION, LLC,
Intervenor.
No. 19-1797
ELIZABETH MOULDS; JENNIFER MATHIAN; OLIVIA LANNA; PRIYA HOWELL;
KATHERINE ROGERS; MICHAEL MULLALEY; HEATHER KAAS; KATIE MCBRINE;
JANICE DEYOUNG; A. SILVIA FABRIZIO; KATHLEEN CRONIN,
Petitioners,
v.
MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondent,
ALGONQUIN GAS TRANSMISSION, LLC,
Intervenor.
No. 19-1803
DOROTHY ANDERSON; ALICE ARENA; MARGARET BELLAFIORE; WENDY
CULLIVAN; SUSAN GREENE; REBECCA HAUGH; ANDREA HONORE; MICHAEL
LANG; CURTIS NORDGAARD, M.D.; THOMAS PENDERGAST; JUDY ROBERTS;
FRANK SINGLETON; BETSY SOWERS; BERNADETTE WILSON,
Petitioners,
v.
MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondent,
ALGONQUIN GAS TRANSMISSION, LLC,
Intervenor.
PETITIONS FOR REVIEW OF AN ORDER OF
THE MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION
Before
Thompson, Lipez, and Kayatta,
Circuit Judges.
Brian F. Bertram, J. Raymond Miyares, Katherine E. Stock,
Miyares and Harrington, LLP, Joseph Callanan, Town Solicitor, Town
of Weymouth, Nicole I. Taub, Town Solicitor, Town of Braintree,
Kerry T. Ryan, Special Counsel, Town of Hingham, Bogle, DeAscentis
& Coughlin, P.C., and Janet Petkun, Assistant City Solicitor, City
of Quincy, on brief for petitioners Town of Weymouth, et. al.
Lawrence K. Kolodney, Adam J. Kessel, Natalie Galley, Eda
Stark, Kayleigh E. McGlynn, and Fish & Richardson P.C. on brief
for petitioners Moulds, et. al.
Michael H. Hayden and Morrison Mahoney LLP on brief for
petitioners Anderson, et. al.
Seth Schofield, Senior Appellate Counsel, Office of the
Attorney General of Massachusetts, Maura Healey, Attorney General
for the Commonwealth of Massachusetts, Julie E. Green, Assistant
Attorney General, Office of the Attorney General of Massachusetts,
and Joshua Olszewski-Jubelirer, Assistant Attorney General, Office
of the Attorney General of Massachusetts, on brief for respondent.
Jeremy C. Marwell, Joshua S. Johnson, Vinson & Elkins LLP,
James T. Finnigan, and Rich May, P.C. on brief for intervenor.
August 31, 2020
PER CURIAM. On June 3, 2020, this court issued an order
and opinion in these consolidated matters vacating the grant of an
air permit by the Massachusetts Department of Environmental
Protection (DEP) for the proposed Weymouth compressor station and
remanding to that agency to redo the Best Available Control
Technology (BACT) analysis. See Town of Weymouth v. Mass. Dep't
of Envtl. Prot., 961 F.3d 34, 58–59 (1st Cir. 2020). Algonquin
Gas Transmission, LLC (the air-permit applicant and intervenor in
this case) petitioned for panel rehearing as to the remedy only.
For the following reasons, we grant Alqonquin's petition and revise
our June 3 opinion to reflect that the remedy granted is remand
without vacatur.
In our June 3 opinion,1 we recognized that the decision
to vacate the agency's decision or instead remand without vacating
was "within our discretion as the reviewing court, and 'depend[ed]
inter alia on the severity of the errors, the likelihood that they
can be mended without altering the order, and on the balance of
equities and public interest considerations.'" Id. at 58 (quoting
Cent. Me. Power Co. v. FERC, 252 F.3d 34, 48 (1st Cir. 2001)).
After considering the parties' argument on these three factors, we
1 Oral arguments in these cases were originally set for April
2020. Due to the COVID-19 pandemic, we cancelled oral arguments.
Because we are required by statute to expedite these matters, see
15 U.S.C. § 717r(d)(5), we decided the cases on the briefs without
rescheduling oral arguments.
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concluded that both sides had "persuasive" arguments. Id. We
went on to determine that additional factors weighed in favor of
vacatur, most notably that DEP would expedite its review on remand
so as not to exacerbate any harm from delaying the completion of
the pipeline construction. Id. To that end, we gave DEP seventy-
five days to complete its review or to show cause why additional
time was needed. Id. at 59. That seventy-five-day period would
have expired on August 17, fifty-four days after issuance of our
mandate in ordinary course. See Fed. R. App. P. 40(a)(1) ("[A]
petition for panel rehearing may be filed within 14 days after
entry of judgment . . . ."); Fed. R. App. P. 41(b) ("The court's
mandate must issue 7 days after the time to file a petition for
rehearing expires . . . ."). Because DEP does not actually
implement an order to vacate a permit decision until mandate
issues, had mandate issued in normal course, Algonquin would have
been precluded from proceeding with the project for no more than
fifty-four days if it succeeded in the renewed permit proceedings.
DEP has now confirmed that it will be unable to meet
that seventy-five-day deadline. In fact, DEP says it will be
unable to complete its review, including administrative appeals,
until January 19, 2021. As a result, even if Algonquin prevails
in the renewed permit proceedings, the project will have been
halted for no fewer than 142 days, assuming we were to issue
mandate today. That hiatus will effectively prevent this new
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proposed infrastructure from coming on-line until the completion
of "commission[ing]" six weeks after January 19, 2021. In short,
permittable or not, the project will be out of operation for most
of the New England and Canadian winter heating season, when demand
for natural gas in the region is at its peak and shortages most
likely. These developments materially alter the "balance of
equities and public interest considerations" that we considered on
June 3. Town of Weymouth, 961 F.3d at 58.
Another material development has occurred since we
issued our opinion: Algonquin has made its supplemental submission
on the remaining BACT issue, and DEP staff has concluded after
preliminary review that an electric motor is not BACT. Although
not binding on DEP, that preliminary conclusion increases the
likelihood that the permit will not be revoked. See id. (noting
that the "severity of the error[]" factors into the remedy
calculus). If correct, the staff's conclusion also means that the
permit will be approved and any operations before January 19, 2021,
will have resulted in no emissions in excess of Massachusetts
regulations.
Finally, DEP -- while taking no position on Algonquin's
petition to amend the remedy -- does not suggest that its
procedures necessitate vacatur in order to perform its required
reconsideration based on a supplemental record. Cf. EME Homer
City Generation, L.P. v. EPA, 795 F.3d 118, 132 (D.C. Cir. 2015)
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("On remand [without vacatur, parties] may provide new evidence,
data, or calculations."); Nat. Res. Def. Council v. EPA, 571 F.3d
1245, 1258 (D.C. Cir. 2009) (remanding without vacating for EPA to
"conduct[] a technical analysis").
Given these new considerations, we amend our opinion to
state that we remand this proceeding to the agency without vacating
the air permit.2 We also grant DEP's unopposed request to extend
the completion of its remand proceedings until January 19, 2021,
and retain jurisdiction only for the limited purpose of
entertaining any further motion concerning the completion deadline
in the hopefully unlikely event that such a motion is filed.
Other than this alteration to the remedy, our June 3
opinion remains unchanged.
2 Petitioners request that, should we opt not to vacate the
air permit, we enjoin Algonquin from operating the compressor
station until DEP makes its final decision. For the foregoing
reasons, we deny that motion.
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