Monday, May 5, 2008

Weavers Cove Energy v. RI Department of Environmental Management

May 2: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-1235, consolidated with 07-1238. The cases involve key dredging permits in Massachusetts and Rhode Island According to the Appeals Court, Weaver’s Cove Energy, LLC (WCE) applied to the Rhode Island Department of Environmental Management (RIDEM) and the Massachusetts Department of Environmental Protection (MassDEP) for “certifications” that its proposed dredge-and-fill operations would comply with the Federal Clean Water Act (CWA). When a year had passed without the State agencies having issued final determinations one way or the other, WCE petitioned this court for review of their inaction, seeking a declaration that the States had “waived” their right to deny the requested certifications. The D.C Circuit said, "Instead, we must dismiss the petitions for want of a case or controversy under Article III of the Constitution of the United States."

The Appeals Court states that, under § 401(a)(1) of the CWA, 33 U.S.C. § 1341(a)(1), an applicant for any federal permit that “may result in any discharge into the navigable waters” of the United States -- such as a dredge-and-fill permit from the Army Corps -- “shall provide the ... permitting agency a certification from the State in which the discharge originates ... that any such discharge will comply with the applicable provisions” of the Act. For the State to participate in the regulatory process, it must act expeditiously: “[I]f the State ... fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements ... shall be waived with respect to such Federal

Despite numerous claims and charges in defense of the State, the Appeals Court ruled, "We reach none of the States’ arguments, for we conclude sua sponte that WCE does not have standing to sue the States; the court therefore lacks jurisdiction over WCE’s petitions." The Appeals Court claims that WCE, in its standing defense, "does not claim to have been injured by it. On the contrary, WCE’s theory of the case is that it benefited from the agencies’ inaction; that is, the agencies, by failing to issue timely rulings on WCE’s applications, waived their rights to deny the certifications WCE seeks." The D.C. Circuit concludes, "In sum, WCE has not shown an injury caused by the state agencies that likely would be redressed by the declaration it seeks. We are therefore without jurisdiction over its petitions for review, which are, accordingly, dismissed."

Access the complete opinion (
click here).

Islander East Pipeline Co. v. McCarthy

May 2: In the U.S. Court of Appeals, Second Circuit, Case No. 06-5764. The Appeals Court denied a petition for review by Islander East Pipeline Company, LLC, who needed a water quality certification from the State of Connecticut Department of Environmental Protection (CTDEP) in order to secure Federal approval to build a natural gas pipeline across Long Island Sound. Islander East contended that the State's second denial of the certification was arbitrary and capricious.

The Appeals Court notes, citing previous decisions, that while the Natural Gas Act (NGA) generally preempts local permit and licensing requirements, the Clean Water and Coastal Zone Management Acts are notable in effecting a Federal-state partnership to ensure water quality and coastal management around the country, so that state standards approved by the Federal government become the federal standard for that state. Under the Clean Water Act, state water quality standards approved by U.S. EPA becomes ‘the water quality standard for the applicable waters of that State. Consistent with that scheme, the two Acts require applicants for Federal permits to provide Federal licensing agencies such as the FERC [Federal Energy Regulatory Commission] with certifications from affected states confirming compliance with local standards.

In a 2-1 decision, the Appeals Court concluded, "To summarize, Islander East’s proposed installation of a natural gas pipeline from Connecticut to New York across Long Island Sound must comport with various statutes, including the Clean Water Act. The Clean Water Act requires Islander East to procure from the CTDEP a certification that the proposed pipeline will comply with state water quality standards. Record evidence supports the CTDEP’s finding that various techniques to be employed by Islander East in installing the proposed pipeline would violate state water quality standards by eliminating a significant area of nearshore waters from their existing and designated use of shellfishing. On such a record, we cannot conclude that the CTDEP’s decision to deny Islander East a certificate of compliance was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' Islander East’s petition for review is denied."

Access the complete opinion (
click here).