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.,

, 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.'"

at 58 (quoting

Cent. Me. Power Co. v. FERC,

(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.

- 4 - 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

- 5 - 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,

.

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

(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,

(D.C. Cir. 2015)

- 6 - ("On remand [without vacatur, parties] may provide new evidence,

data, or calculations."); Nat. Res. Def. Council v. EPA,

(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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