United States Court of Appeals
For the First Circuit
Nos. 06-1203 and 06-2146
CITY OF FALL RIVER, MASSACHUSETTS;
THE ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS;
THE ATTORNEY GENERAL FOR THE STATE OF RHODE ISLAND; and
MASSACHUSETTS ENERGY FACILITIES SITING BOARD,
Petitioners,
v.
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent.
Nos. 06-1204 and 06-2147
CONSERVATION LAW FOUNDATION,
Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent.
No. 06-1220
MICHAEL L. MIOZZA,
Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent.
ON PETITIONS FOR REVIEW OF AN ORDER OF THE
FEDERAL ENERGY REGULATORY COMMISSION
Before
Torruella and Lipez, Circuit Judges,
and Fusté,* District Judge.
Robert S. Taylor, with whom Edward Berlin, Lester S. Hyman, B,
H&T Associates, Thomas F. McGuire, Jr., Corporation Counsel, Thomas
F. Reilly, Massachusetts Attorney General, Chief, Carol Iancu,
Assistant Attorney General, were on brief, for the City of Fall
River, the Attorney General of the Commonwealth of Massachusetts,
and Massachusetts Energy Facilities Siting Board.
Paul Roberti, Assistant Attorney General, Chief, Regulatory
Unit, with whom Patrick C. Lynch, Attorney General of the State of
Rhode Island, and Terence Tierney, Special Assistant Attorney
General, were on brief, for the Attorney General for the State of
Rhode Island.
Susan M. Reid, with whom Jerry Elmer were on brief, for
Conservation Law Foundation.
Beth G. Pacella, Senior Attorney, with whom John S. Moot,
General Counsel, and Robert H. Solomon, Solicitor, were on brief,
for Federal Energy Regulatory Commission.
Bruce F. Kiely, with whom G. Mark Cook, Adam J. White, Jessica
A. Fore, Emil J. Barth, and Baker Botts L.L.P. were on brief, for
intervenors Weaver's Cove Energy, LLC and Mill River Pipeline, LLC.
Michael L. Miozza, on brief, pro se.
October 26, 2007
*
Of the District of Puerto Rico, sitting by designation.
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TORRUELLA, Circuit Judge. The City of Fall River,
Massachusetts, the Attorneys General of the States of Massachusetts
and Rhode Island, the Conservation Law Foundation ("CLF"), and
Michael Miozza (together, "Appellants") seek reversal of the July
2005 Order of the Federal Energy Regulatory Commission ("FERC")
granting conditional approval to Weaver's Cove Energy ("WCE") to
site, construct, and operate a proposed liquified natural gas
("LNG") terminal and associated pipeline in Fall River,
Massachusetts, as well as the reversal of subsequent orders denying
the reopening of the record and rehearing. The facility, which
would include a marine berth (requiring dredging of the harbor and
waterways, including the Taunton River), an LNG storage tank,
regasification facilities, and an LNG truck distribution facility,
would receive LNG from ocean-going ships for off-load to trucks or
for regasification and delivery by pipeline to New England's
network of natural gas pipelines.
The conditional permit is subject to a number of
stipulations, including approval of the vessel transportation plan
by the United States Coast Guard ("USCG") and consistency with the
Wild and Scenic Rivers Act, as determined by the Department of the
Interior ("DOI"). Because the USCG and the DOI have not completed
their respective evaluations of these aspects of the project, we
find that it would be premature to address the merits of the
appeal. Appellants maintain the right to petition FERC, and
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subsequently seek appeal to this Court, if and when these and other
relevant agencies have made their final recommendations.
I. Background
In 2004, FERC, USCG, and the United States Department of
Transportation ("DOT") entered into an Interagency Agreement to
coordinate review of proposed LNG facilities. Under the agreement,
FERC is the lead agency in authorizing LNG facilities and in
preparing a proposed facility's Environmental Impact Statement
("EIS"),1 which is required by the National Environment Policy Act
of 1969 ("NEPA"), 42 U.S.C. §§ 4321 et seq. Generally,
authorization is granted (as it was in this case) on the condition
that certain stipulations, environmental and otherwise, are met.
Here, the development of the EIS began on May 2, 2003,
with a preliminary meeting between WCE, FERC staff, and key federal
and state officials to discuss WCE's proposal and the accompanying
environmental review process. At that time, FERC invited all
federal, state, or local agencies with jurisdiction or special
expertise to cooperate in preparing the EIS, and also invited all
interested parties to submit written comments and to attend a
public scoping meeting to be conducted jointly by FERC and
Massachusetts state officials on July 29, 2003. On December 19,
2003, WCE formally applied to FERC under the Natural Gas Act of
1
An EIS addresses not only environmental issues, but also safety,
security and design issues, as well as maritime safety and security
operations.
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1938 ("NGA"), 15 U.S.C. §§ 717 et seq., requesting authority to
site, construct, and operate the proposed LNG facility.
During the review process, FERC received voluminous
comments from the public, as well as objections from government
agencies. As part of this process, FERC's Commissioner and
Chairman also hosted a meeting in January 2005, at which Fall
River's Mayor, Senators Edward Kennedy and John Kerry, Congressman
James McGovern, Massachusetts Representative David Sullivan, and
then-Governor Mitt Romney's representative presented their views on
the proposal.
Based on those comments and the research conducted during
the review process, FERC prepared and issued a Final EIS on May 20,
2005, and conditionally authorized the project on July 11, 2005.2
The conditional authorization was based on an analysis of the need
2
Shortly after conditional approval, on January 23, 2006, FERC
denied a petition by CLF to rehear the case.
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for the project,3 project alternatives,4 and safety and security
considerations.5
The conditions imposed on the project's authorization
include two significant hurdles: (1) approval of WCE's
transportation plan by the USCG,6 and (2) the DOI's finding that
the project is consistent with the Wild and Scenic Rivers Act.7
3
LNG facilities have existed in New England for over thirty
years. The demand for the project is fueled by New England's
increasing consumption of natural gas. When consumption peaks in
the winter months, daily demand can exceed supply by over 1 billion
cubic feet of gas. Weaver's Cove Energy, LLC, 112 F.E.R.C. 61,070,
61,528 (2005).
4
The alternatives considered included: no action or postponed
action; onshore or offshore system and terminal site alternatives;
terminal layout alternatives; and dredge disposal alternatives.
The alternatives each failed for at least one of the following
reasons: it did not meet the purpose of the proposed project; it
could not be developed by 2010, when the project was expected to be
operational; it involved greater environmental impacts; or the
property was not available for development. Weaver's Cove, 112
F.E.R.C. at 61,544.
5
This includes federal and state safety standards, including the
USCG's security plans for LNG vessels. Weaver's Cove, 112 F.E.R.C.
at 61,540.
6
"Pursuant to [USCG] regulations, an owner or operator that
intends to construct an LNG facility must submit a Letter of Intent
to the Coast Guard describing . . . the vessels . . . and the
frequency of the visits." Weaver's Cove Energy, LLC, 115 F.E.R.C.
61,058, 61,179 (2006) (citing 33 C.F.R. § 127.007 (2005)). The
USCG makes a determination on the suitability of the waterway for
LNG vessels in a Letter of Recommendation. Id. "Factors
considered by the [USCG] . . . include, as pertinent: density and
characteristics of marine traffic in the waterway; locks, bridges
and other man-made obstructions in the waterway; and water depth
and tides." Id. (citing 33 C.F.R. § 127.009 (2005)).
7
According to FERC's conditional permit, approval was granted
conditional to the DOI's evaluation that "the project would not
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Neither the USCG nor the DOI have completed their respective final
evaluations.
Since the conditional approval, there have also been two
changes in project conditions that could very well affect WCE's
final project approval. First, at the time of conditional
approval, the Brightman Street Bridge, which crosses the river
leading from the ocean to the planned LNG facility site, was
scheduled for demolition. However, in late 2005, Congress passed
legislation forbidding the demolition of the bridge, frustrating
WCE's original plan to use 150-foot wide vessels to bring LNG to
the facility. A new, larger Brightman Street Bridge is still
scheduled to be built next to the old protected bridge. In an
amended proposal, WCE informed the USCG that it would use smaller
ships that could pass through the ninety-eight foot wide opening of
the Bridge, thereby increasing the frequency of shipments from the
planned fifty to seventy deliveries up to 120 deliveries per year.
Even with the smaller ships, however, transit through the new and
old Brightman Street Bridges would be "an extraordinary
navigational maneuver" leaving "no margin for error," according to
the Coast Guard's preliminary findings.
have a substantial adverse effect on the Taunton River's potential
designation as a Wild and Scenic River ("WSR") and that the project
would be consistent with the Wild and Scenic River Act if the
Taunton River were designated a WSR." Weaver's Cove, 112 F.E.R.C.
at 61,550.
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Second, seven months after FERC approval, DOI announced
new restrictions that would limit the dredging of the necessary
waterways to a few months of the year, likely delaying the
completion of the project from 2010 to 2015.
On April 17, 2006, CLF petitioned FERC to reopen the
record to consider the impact of those two developments on the
project. FERC denied the motion, finding that there had not been
a change in circumstances on which its conditional approval was
based, and therefore review was not warranted. FERC explained that
it is the USCG's duty to review the changed shipment plan in its
yet-to-be-released Letter of Recommendation, and that there is no
change relative to FERC's conditional approval unless the USCG's
review of this matter results in changes to the project that
require a change to the plan authorized by FERC.8 FERC did not
address the potential impact of the changes in dredging regulations
on the project's start date.
Following FERC's order denying the motion to reopen the
record, CLF requested a rehearing based on the changes to WCE's
navigation plan and potential delays caused by the new dredging
8
Although the USCG has not provided FERC with a Letter of
Recommendation regarding the transit of the LNG vessels, the USCG's
preliminary letter stated, as previously noted, that the maneuvers
required to get through the Brightman Street Bridges were extremely
difficult and that the waterway configuration "appears unsuitable"
for WCE's vessel transit proposal. It also noted that the "entire
proposed transit route . . . represents a unique challenge to
water-borne security."
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constraints. FERC denied CLF's subsequent rehearing request on
July 19, 2006. The explanation accompanying the denial of
rehearing was largely the same as the denial to the motion to
reopen. FERC added that, in regard to the dredging regulations,
there was "no new or significantly changed project" warranting a
rehearing and that the 2010 target date for the commencement of
service was not a prerequisite for FERC's authorization to the
project.
The Appellants now seek review of (1) the merits of
FERC's conditional project approval and (2) FERC's denial of
Appellant's motion to reopen the record.
II. Discussion
A. FERC's Conditional Approval
At this time, we decline to review the merits of FERC's
conditional project approval because it is not yet ripe for review.
"Ripeness is a justiciability doctrine" that is "drawn both from
Article III limitations on judicial power and from prudential
reasons for refusing to exercise jurisdiction." Nat'l Park
Hospitality Ass'n v. Dep't of the Interior, 538 U.S. 803, 807-08
(2003) (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57
n.18 (1993)). Even in cases "raising only prudential concerns, the
question of ripeness may be considered on a court's own motion."
Id. at 808. We now consider the question.
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The ripeness doctrine is designed to prevent courts from
"entangling themselves in abstract disagreements over
administrative policies" and from improperly interfering in the
administrative decision-making process. Abbott Labs. v. Gardner,
387 U.S. 136, 148-49 (1967), overruled on other grounds by Califano
v. Sanders, 430 U.S. 99 (1977). In determining whether a case is
ripe for review, we must examine "both the fitness of the issues
for judicial decision and the hardship to the parties of
withholding court consideration." Id. at 149.
Under the first prong of this ripeness inquiry, fitness
for judicial review, we consider "whether the matter involves
uncertain events which may not happen at all, and whether the
issues involved are based on legal questions or factual ones."
Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223,
1237 (10th Cir. 2004); see also McInnis-Misenor v. Me. Med. Ctr.,
319 F.3d 63, 70 (1st Cir. 2003) ("In the fitness inquiry,
. . . prudential concerns focus[] on the policy of judicial
restraint from unnecessary decisions."). "If the court's interest
tends toward postponement, we must then weigh this consideration
against the immediate impact of the actions on the challengers, and
whether that impact is so harmful that present consideration is
warranted." Midwestern Gas Transmission Co. v. Fed. Energy Reg.
Comm'n, 589 F.2d 603, 618 (D.C. Cir. 1978).
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In making the fitness determination, the prospect of
entangling ourselves in a challenge to a decision whose effects may
never be "felt in a concrete way by the challenging parties,"
Abbott Labs., 387 U.S. at 148-49, is an especially troublesome one.
We have explained that "premature review not only can involve
judges in deciding issues in a context not sufficiently concrete to
allow for focus and intelligent analysis, but it also can involve
them in deciding issues unnecessarily, wasting time and effort."
W.R. Grace & Co. v. EPA, 959 F.2d 360, 366 (1st Cir. 1992)
(internal quotation marks and citation omitted). As such, a "claim
is not ripe for adjudication if it rests upon 'contingent future
events that may not occur as anticipated, or indeed may not occur
at all.'" Texas v. United States, 523 U.S. 296, 300 (1998)
(quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568,
580-81 (1985)).
A pragmatic view of the facts in this case reveals that
it is not ripe for review. Plainly stated, WCE's proposed LNG
project may well never go forward because FERC's approval of the
project is expressly conditioned on approval by the USCG and the
DOI. Neither agency has yet given its final recommendation, and
each has expressed serious reservations about the project. The
USCG has remarked that "it appears that the waterway may not be
suitable for the type and frequency of LNG marine traffic contained
in [the WCE] smaller tanker proposal," and that "the entire
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proposed transit route . . . presents a unique challenge to water-
borne security." Likewise, the DOI has warned that if Taunton
River is designated as a National Wild and Scenic River (a
designation that has strong local support), it is unlikely that
"[the DOI] will . . . be able to provide the statutorily required
affirmative statement of no adverse impact," due to the
"unavoidable adverse site impacts." Because "[c]ourts have no
business adjudicating the legality of non-events," Nat'l Wildlife
Fed'n v. Goldschmidt, 677 F.2d 259, 263 (2d Cir. 1982), we decline
to decide whether FERC's actions thus far were proper.
The balance of hardship to the parties in this case does
not persuade us otherwise. Appellants retain every opportunity to
challenge FERC's decision in the event the USCG and DOI approve the
project. Such a challenge would not be barred by the statute of
limitations. "A time limitation on petitions for review . . . can
run only against challenges ripe for review." Baltimore Gas &
Elec. Co. v. Interstate Commerce Comm'n, 672 F.2d 146, 149 (D.C.
Cir. 1982); see also Whittle v. Local 641, Int'l Bhd. of Teamsters,
56 F.3d 487, 489 (3d Cir. 1995) (holding that a cause of action
accrues "when it is sufficiently ripe that one can maintain suit on
it"). While the statute of limitations may pose a bar to claimants
who delay filing their complaints based "on their own assessment of
when an issue is ripe for review," see, e.g., Eagle-Pitcher Indus.
Inc. v. EPA, 759 F.2d 905 (D.C. Cir. 1985) (articulating the
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limited "circumstances under which the court will engage in
'retrospective ripeness analysis' after the statutory review period
has expired"), the appellants here will not suffer that
consequence. Because we hold that Appellants' challenge to FERC's
approval of the WCE project will not be ripe for review until the
USCG and the DOI have given their respective approvals for the
project, the statute of limitations period will not begin to run
against Appellants until WCE obtains those approvals. Cf.
Baltimore Gas & Elec. Co. v. Interstate Commerce Comm'n, 672 F.2d
at 149-50 (dismissing the petition on ripeness grounds, but
reassuring the petitioner that the statute of limitations would not
begin to run until its claims ripened).
Concerns about hardship to the parties are further
lessened by the fact that FERC's decision will have no immediate
impact on Appellants. Because WCE may not proceed with the NLG
project until it obtains approval from the USCG and the DOI, no one
will experience the effects of FERC's decision unless and until the
agencies authorize the project. See New Hanover Twp. v. United
States Army Corps of Eng'rs, 992 F.2d 470, 473 (3d Cir. 1993)
(concluding that the challenge to defendant's issuance of a general
permit to landfill corporation was not ripe for review because
corporation needed further approval from state agency before
proceeding with landfill project).
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Given that decisive questions remain open, we think it
wiser to allow the agencies to continue their decision-making
process at least until final authorization is granted by all three
agencies. See Midwestern Gas Transmission Co., 589 F.2d at 620
("Exhaustion of this administrative process will refine and focus
the factual basis upon which both the public interest determination
and the overall authorization rest, and will avoid a multiplicity
of suits challenging conditional, tentative [agency] decisions.").
Until then, our review would be advisory, and likely irrelevant to
the ultimate approvability of the project. See Nat'l Wildlife
Fed'n, 677 F.2d at 263 (declining to review adequacy of Final EISs
prepared for proposed highway sections that might never be built,
noting that "[r]eview now might well adjudicate matters which are
ultimately immaterial and would by no means put the matter to rest,
since actions brought after a decision to build [the highway] has
been made can challenge the present [Final EISs] as obsolete.");
see also Environmental Defense Fund, Inc. v. Johnson, 629 F.2d 239,
241 (2d Cir. 1980) (holding that adjudication of the legality of an
agency's recommendation would be premature where project undergoing
further study could ultimately be abandoned or substantially
altered).
B. FERC's Denial of Appellant's Motion to Reopen the Record
When FERC denies a petition to reopen a case record, we
review its decision for abuse of discretion. E. Carolinas Broad.
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Co. v. FCC, 762 F.2d 95, 103 (D.C. Cir. 1985) ("[We] normally
reverse an agency's decision not to reopen the record only for
abuse of discretion."). We generally uphold a federal agency's
decision not to reopen a record or hearing based on changed
circumstances or newly available information unless it "clearly
appear[s] that the new evidence would compel or persuade . . . a
contrary result." Id. (quoting Friends of the River v. FERC, 720
F.2d 95, 98 n.6 (D.C. Cir. 1983)).
We find that FERC did not abuse its discretion in denying
to reopen the record due to the changes in the applicable dredging
regulations and the status of the old Brightman Street Bridge.
While the changes in dredging regulations are likely to delay
project completion, FERC has denied that the anticipated project
completion date of 2010 was a controlling factor in its conditional
project approval. Thus, it is not clear that the change in the
dredging regulations would compel FERC to adopt a "contrary
result." Id. Likewise, we cannot conclude that the change in the
status of the old Brightman Street Bridge would necessarily compel
FERC to revoke the conditional project approval. Congress's
prohibition of the demolition of the bridge will surely impact
WCE's transit plan, but until the USCG determines the acceptable
contours of that plan, FERC is not in a position to make an
informed evaluation.
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III. Conclusion
In sum, we will not review the merits of FERC's
conditional project approval because we find it is not ripe for
review at this time. We also find no abuse of discretion in FERC's
decision to deny a reopening of the record. However, our decision
does not preclude Appellants from again petitioning FERC to reopen
the record -- or subsequently seeking redress with this Court --
when the future of WCE's proposed LNG project is more certain.
Affirmed.
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