Weaver's Cove Energy, LLC v. Rhode Island Coastal Resources, et al

Filing 920091026

Opinion

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var WPFootnote1 = '  Of the Seventh Circuit, sitting by designation.\
'

var WPFootnote2 = '                   A state is prohibited from undertaking interstate\
consistency review of activities occurring in a different state\
unless the state requests and obtains interstate review authority\
from NOAA. 15 C.F.R. § 930.154(e). \
'

var WPFootnote3 = '                   A state may reopen review of a certification if the\
applicant makes a "major amendment" to the project. 15 C.F.R.\
§§ 930.51(b)-(c), (e), 930.66(b). That provision is inapplicable\
here.\
'

var WPFootnote4 = '                   LNG, produced by cooling natural gas to a liquid state,\
has less volume and so can be more economically transported. The\
terminal proposed by Weaver\'s Cove would receive imported LNG from\
tanker ships, regasify it, and inject it into the U.S. natural gas\
grid. According to Weaver\'s Cove, the proposed terminal would\
supply fifteen percent of New England\'s "peak day" natural gas\
demand in 2010. Weaver\'s Cove, 583 F. Supp. 2d at 262-63, 262 n.2.\
'

var WPFootnote5 = '                   The original proposal to the Army Corps set forth a\
Massachusetts disposal site but also considered offshore disposal\
at a federal ocean disposal site approved by the Environmental\
Protection Agency and the Army Corps. \
'

var WPFootnote6 = '                   Because CRMC has not itself challenged the district\
court\'s finding with respect to mootness, we do not address CRMC\'s\
challenge to the jurisdictional questions raised in footnote 18 of\
the district court\'s opinion. In re Williams, 156 F.3d 86, 90 (1st\
Cir. 1998) ("[F]ederal appellate courts review decisions,\
judgments, orders, and decrees--not opinions, factual findings,\
reasoning, or explanations.").\
'

var WPFootnote7 = '                   The Army Corps also requires Weaver\'s Cove to submit\
verification that its application to CRMC is complete before it can\
complete its review. \
'

var WPFootnote8 = '                   We affirm the district court\'s holding that the Offshore\
Berth Amendment does not affect CRMC\'s consistency review. \
Weaver\'s Cove, 583 F. Supp. 2d at 275-78. That FERC is reviewing\
the Offshore Berth Amendment is irrelevant and does not moot this\
appeal regarding findings by a Rhode Island agency. What effect\
that amendment may have on dredging activities in Massachusetts is\
not at issue before us.\
'

var WPFootnote9 = '                   We note that Weaver’s Cove no longer intends to dispose\
of the dredged materials at any “upland facilit[y]” and instead now\
plans to dispose of the waste at an offshore site. As CRMC points\
out in its reply brief, this was not the case at the time of the\
original consistency review application. Weaver’s Cove at that\
time planned to dispose of the waste at its Fall River Facility. \
We do not address this change, because it occurred after the time\
concurrence would have been presumed, and neither party has raised\
it on appeal.\
'

var WPFootnote10 = '                   Thus, in order to prevent a hypothetical "trash barge to\
nowhere scenario," in which Rhode Island is forced to dispose of\
dredged material that no one else will accept, CRMC is entitled to\
demand proof that Weaver\'s Cove\'s proposed upland disposal facility\
will accept it. Of course, this is not a barge to nowhere\
situation, because Weaver\'s Cove has identified a disposal site\
subject to the jurisdiction of other agencies that play a role\
under the CZMA.\
'

var WPFootnote11 = '                   We also reject CRMC\'s argument that it deserves deference\
under Mountain Rhythm Resources v. Fed. Energy Regulatory Comm\'n,\
302 F.3d 958 (9th Cir. 2009). That case involved review of a\
federal agency\'s decision to adopt a state\'s interpretation of its\
coastal management plan under the arbitrary and capricious\
standard. Id. at 966. Here we are reviewing the state agency\'s\
interpretation itself.\
'

var WPFootnote12 = '                   This provision of the NGA was not in effect until August\
8, 2005, after FERC issued its order on July 15, 2005. However,\
FERC\'s interpretation of its own preemptive authority under the NGA\
to regulate construction of LNG facilities was clearly articulated\
before this provision came into force. Weaver\'s Cove Energy, LLC,\
112 F.E.R.C. at ¶ 61,546. Further, FERC reaffirmed its approval of\
Weaver\'s Cove\'s application after the provision became effective. \
Weaver\'s Cove Energy, LLC, 114 F.E.R.C. at ¶ 61,185-86. \
'

var WPFootnote13 = '                   Rather CRMC argues that Section 10 of the River and\
Harbors Act saves Category B Assent from preemption by the NGA, a\
contention we consider below. \
'

var WPFootnote14 = '                   The parties never raised objections to these findings in\
their request for rehearing to FERC and thus courts have no\
jurisdiction to review this determination by FERC. 15 U.S.C.\
§ 717r(a) ("No proceeding to review any order of the Commission\
shall be brought by any person unless such person shall have made\
application to the Commission for a rehearing thereon.").\
'

var WPFootnote15 = '                   CRMC and Massachusetts also incorrectly argue that the\
district court based its Category B Assent preemption on the\
doctrine of federal navigational servitude and that a finding of\
preemption under the servitude was improper because Congress failed\
to invoke it expressly within the NGA. The argument misreads the\
district court\'s holding and is irrelevant. Congress\'s power to\
preempt state regulation here emanates not only from its power to\
regulate navigation but also from its power to regulate commerce\
itself. U.S. Const. art. I, § 8, cl. 3; 43 U.S.C. § 1314(a) ("The\
United States retains all its navigational servitude and rights in\
and powers of regulation and control of said lands and navigable\
waters for the constitutional purposes of commerce, [and]\
navigation . . . ."); see also First Iowa Hydro-Elec. Coop. v.\
Federal Power Com., 328 U.S. 152, 182 (1946) ("The states possess\
control of the waters within their borders, \'subject to the\
acknowledged jurisdiction of the United States under the\
Constitution in regard to commerce and the navigation of the waters\
of rivers.\'" (quoting United States v. Appalachian Elec. Power Co.,\
311 U.S. 377, 404 (1940)). \
              In its reply brief, CRMC raises a new argument that while\
Congress could preempt commercial regulation under the Commerce\
Clause, it could not displace Rhode Island\'s property rights\
without invoking the navigational servitude doctrine. Because\
arguments raised for the first time in reply briefs are\
procedurally barred, we need not consider this contention. United\
States v. Hall, 557 F.3d 15, 20 n.3 (1st Cir. 2009). In any event,\
the argument is wrong. The Supreme Court has held that state\
property interests in land may not preempt federal statutes enacted\
pursuant to the Commerce Clause. Douglas v. Seacoast Prods., Inc.,\
431 U.S. 265, 283-84 (1977).\
'

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