State of Rhode Island Loses LNG Appeal at the First Circuit

In a big loss to Attorney General and gubernatorial candidate Patrick Lynch (who has made his anti-LNG stance a big campaign issue), the First Circuit Court of Appeals ruled that the state’s Coastal Resources Management Council forfeited its ability to oppose a controversial LNG proposal to bring supertankers up Narragansett Bay by failing to timely make a decision on the proposal.  Here’s the beginning of the opinion authored by Chief Judge Sandra Lynch:

The Rhode Island Coastal Resources Management Council (“CRMC”) challenges a decision by the federal district court, which has rejected two regulatory barriers CRMC imposed to plans to build a Liquified Natural Gas (“LNG”) terminal in the City of Fall River with a berth in Massachusetts coastal waters of Mount Hope Bay. Weaver’s Cove Energy, LLC (“Weaver’s Cove”) is the sponsor of the LNG terminal. Weaver’s Cove Energy, LLC v. R.I. Coastal Res. Mgmt. Council, 583 F. Supp. 2d 259 (D.R.I. 2008). The barriers, which CRMC has attempted to impose, are to necessary dredging by Weaver’s Cove in Rhode Island navigable waters, in a federal navigation channel. The Federal Energy Regulatory Commission (“FERC”) generally approved the project in 2005, subject to certain conditions. Until those conditions are met, Weaver’s Cove cannot start construction. The Commonwealth of Massachusetts, joined by the City of Fall River, has filed a brief as amicus curiae in support of CRMC.

We address three main issues. The first is whether we have Article III jurisdiction to decide these matters. The second is whether the district court erred in holding that CRMC’s failure to respond within six months to Weaver’s Cove’s application for federal consistency review requires there be a presumption of concurrence in the project, pursuant to 16 U.S.C. § 1456(c)(3)(A) of the Coastal Zone Management Act of 1972 (“CZMA”). The third is whether CRMC’s use of its state law licensing program for alterations to the coast, 04-000-010 R.I. Code R. §§ 100.1, 300.1, to block the project is preempted by the Natural Gas Act (“NGA”).

For the reasons set forth below, we affirm the district court’s decision.

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