United States: PipelineLaw: First Circuit Says No Statute Of Limitations Defense To Natural Gas Act Preemption Claim; FERC's Policy Of Encouraging Cooperation With Localities Creates No Enforceable Duty

In Algonquin Gas Transmission, LLC v. Weymouth Massachusetts, a First Circuit panel last month ruled that a statute of limitations defense is inapplicable to a Natural Gas Act (NGA) preemption claim against a locality. The court also held that the Federal Energy Regulatory Commission’s (FERC) longstanding policy of "encouraging cooperation between interstate pipelines and local authorities" doesn't impose a legally enforceable duty on pipeline companies to go through local regulatory review processes before filing an NGA preemption suit.1

Procedural background

In January 2017, FERC issued Algonquin Gas Transmission, LLC (Algonquin) an NGA Section 7(c) FERC certificate to construct and operate an interstate natural gas transportation project that included a new compressor station in the Town of Weymouth, Massachusetts. The certificate conditioned construction of the station on a consistency determination from the Massachusetts Office of Coastal Zone Management (OCZM) under the Coastal Zone Management Act (CZMA). OCZM, however, declined to issue the consistency determination unless Algonquin first obtained a local wetlands permit from the Town of Weymouth under a Massachusetts wetlands protection regime that allows localities to adopt and enforce regulations more stringent than those imposed by the state.2

The Town denied Algonquin's permit request, but the Massachusetts Department of Environmental Protection (MassDEP) reversed the locality after an administrative appeal by the company. The Town, however, appealed the reversal, which then prompted MassDEP to stay the proceedings pending a judicial determination of whether the local permit requirement was preempted by the NGA. As a result, Algonquin filed a declaratory judgment action in Massachusetts federal district court seeking a ruling that the NGA preempted the local permit requirement and an injunction prohibiting the Town from enforcing it. The district court granted Algonquin's motion for summary judgment on both conflict and field preemption grounds and enjoined enforcement of the local regulations.3 Undeterred, the Town appealed that ruling to the First Circuit.

Statute of limitations inapplicable to preemption claim

The Town argued, among other things, that Algonquin's preemption claim was time-barred. There being no applicable federal statute of limitations, the Town urged the First Circuit to "borrow" a Massachusetts 60-day limitations period applicable to state law writs of certiorari for challenging quasi-judicial actions. The court rejected that argument, however, holding that Algonquin's suit for declaratory and injunctive relief was essentially "equitable in nature" as to which no statute of limitations applied.4

FERC's "cooperation" policy does not create a legally enforceable duty

Like most NGA section 7(c) certificates, Algonquin's certificate referenced a longstanding Commission policy that "encourages cooperation between interstate pipelines and local authorities" with respect to any local permits potentially applicable to jurisdictional natural gas transportation facilities.5 FERC further explains, however, that any such local permits "must be consistent with the conditions of the certificate," and that state or local regulators cannot "prohibit or unreasonably delay the construction or operation of facilities approved by the Commission."6

The Town argued that FERC's cooperation policy imposed a legal duty requiring Algonquin to "make a reasonable attempt to obtain local permit approval" before asking the district court to declare the local requirements preempted.7 The First Circuit disagreed, noting that "Weymouth provides no support for the existence of such a duty under federal law," and that FERC's policy "does not require such cooperation from Algonquin; it merely 'encourages' it."8

Other arguments and rulings

The First Circuit panel also rebuffed the Town's argument that the case wasn't ripe because the FERC certificate imposed conditions on project construction other than the OCZM consistency determination that remained unsatisfied. Despite the unsatisfied conditions, the court found the case to be ripe because the relief Algonquin sought was "neither 'advisory' nor 'irrelevant;'" if granted, it "would finally remove a principal impediment that stands in the way of a final action by" OCZM, thereby clearing "a procedural logjam that would not otherwise be cleared."9

The panel also disagreed with the Town's argument that the district court's preemption determination was erroneous. The appellate court, however, affirmed only on conflict preemption principles, holding it unnecessary to address the lower court's additional ruling applying broader principles of field preemption.10 Among other things, the panel found that the Town based its local permit denial on conclusions that were directly at odds with FERC's findings in the certificate concerning the project's environmental, safety, siting and other considerations. In the court's view, the locality's permit denial created an "effectively complete obstacle to FERC’s ultimate determination that 'public convenience and necessity' 'require' that the Weymouth Compressor Station be built."11

Observations and implications

In Algonquin, the Town of Weymouth, wittingly or unwittingly, tried to use FERC's cooperation policy together with a statute of limitations defense to put the pipeline company in an untenable "heads I win tails you lose" position. In one breath, the Town asserted that Algonquin breached a "duty" arising from FERC's cooperation policy by not taking enough time to navigate the local permit and appeal process before filing a preemption suit. Then, in the other breath, the Town claimed that Algonquin waited too long to sue, arguing that the company's lawsuit was time-barred under a short state law statute of limitations.

The First Circuit's rejection of those two arguments should help prevent similar "Catch-22" 12 scenarios from arising in the future, but without unduly hampering cooperation between pipeline companies and local/state regulators of the type encouraged by FERC's policy. By holding that FERC's cooperation policy doesn't create a legal duty, interstate natural pipeline companies aren't forced to waste time and money slogging through unnecessary local or state permitting regimes before seeking judicial relief on NGA preemption grounds. At the same time, the court's no-statute-of-limitations ruling should make pipeline companies feel less compelled to race to court the instant a potential preemption situation arises. Instead, they can try to work out potential conflicts with local or state regulators without fear that doing so might create a statute of limitations problem if a preemption suit were later to become necessary— a result that seems fully consistent with the letter and spirit of FERC's cooperation policy.


1 __ F.3d __, No. 18-1686, 2019 U.S. App. LEXIS 8097, at *12, 19-20 (1st Cir. March 19, 2019).

2 The district court held that the local ordinance was not "promulgated under the rights" of Massachusetts under the CZMA, and, therefore, not saved from federal preemption by the NGA's savings clause, 15 U.S.C. § 717b(d) – a ruling that apparently wasn't challenged on appeal. See Algonquin Gas Transmission, LLC v. Weymouth Conservation Comm'n, No. 17-10788-DJC, 2017 U.S. Dist. LEXIS 213024, at *14-15 (D. Mass. Dec. 29, 2017).

3 Algonquin Gas Transmission, LLC, 2019 U.S. App. LEXIS 8097, at *8.

4 Id. at *11. The court ruled that the Town potentially could have relied upon the doctrine of laches, but the Town failed to raise that argument. Id. at *12.

5 Id. at *20.

6 Algonquin Gas Transmission, LLC, 158 FERC ¶ 61,061, at P61 (Jan. 25, 2017).

7 Algonquin Gas Transmission, LLC, 2019 U.S. App. LEXIS 8097, at *19-20.

8 Id. at *20.

9 Id. at *14-15.

10 Id. at *15-20.

11 Id. at *19 (citations omitted; emphasis in original).

12 Joseph Heller, Catch 22 (Simon & Schuster 1961).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions