By Michael Kuser

A D.C. Circuit Court of Appeals panel on Friday declined to review FERC’s approval of plans to expand capacity on the Algonquin Gas Transmission natural gas pipeline.

The court also dismissed a petition from a group of elected Boston officials for lack of standing.

Circuit Judge Sri Srinivasan filed the opinion (Case No. 16-1081) for the three-member panel July 27, denying petitions from the Town of Dedham, Mass., Riverkeeper, and a coalition of other environmental groups that said the commission should have evaluated three separate Algonquin expansion projects in a single environmental impact statement.

The court noted that FERC approved the Algonquin Incremental Market (AIM) project in March 2015, that Algonquin submitted the application for the Atlantic Bridge project in October 2015 and that the company has yet to file its application for the Access Northeast project.

“The projects thus were not under simultaneous consideration by the agency,” and thus not improperly segmented, the court said. It also found FERC reasonably concluded that the projects were not interdependent, as they each had separate timelines for approval and commencing service.

The petitioners also contended that the commission failed to consider sufficiently the cumulative environmental impacts of the three projects. But the court said FERC took into account the AIM project’s EIS when evaluating Atlantic Bridge’s, and that Access Northeast is too early in development.

“The adequacy of an environmental impact statement is judged by reference to the information available to the agency at the time of review, such that the agency is expected to consider only those future impacts that are reasonably foreseeable,” the court said.

Indian Point Proximity

The $972 million AIM project includes about 5 miles of new pipeline, the West Roxbury Lateral, which would run adjacent to a quarry outside Boston, and larger-diameter replacement pipeline next to the Indian Point nuclear plant on the Hudson River in New York.

The petitioners questioned FERC’s reliance on testimony from the Nuclear Regulatory Commission and Indian Point owner Entergy that AIM — which will lay pipeline 2,370 feet from the plant’s security barrier — posed no increased threat to the nuclear plant.

“We disagree,” the court said, ruling that FERC had “permissibly decided to credit the NRC’s expert conclusions, and to accept that NRC’s ‘extensive formal responses’ had adequately addressed the opposing experts’ concerns.”

The court also said it lacked jurisdiction to consider petitioners’ contention that the third-party contractor preparing the project’s EIS, Natural Resource Group, had a conflict of interest, as they had not raised the issue with FERC.

Not Really Boston

Although the commission did not initially contest the Boston delegation’s standing, Algonquin raised the issue as an intervenor in the case, which led the court to address the issue. The delegation consisted of nine elected representatives from Boston, including the mayor, a congressman and two state legislators.

The delegation’s claim of injury for standing purposes rested on the West Roxbury Lateral’s allegedly adverse safety, health and environmental effects on the city. The delegation staked its standing primarily on the mayor’s participation in the petition, claiming that effectively made the city a party.

“We are unpersuaded by the delegation’s theory,” the court said. “While the city of Boston could in theory bring an action, the mayor does not act as the city when he files a lawsuit in his own name.

“The city code specifies the process by which a lawsuit is initiated on behalf of the city of Boston. … That process did not take place here.”