Weaver's Cove Energy, LLC v. Rhode Island Coastal Resources Management Council

United States Court of Appeals
For the First Circuit

No. 08-2440

WEAVER'S COVE ENERGY, LLC,

Plaintiff, Appellee,

v.

RHODE ISLAND COASTAL RESOURCES MANAGEMENT COUNCIL; MICHAEL M.
TIKOIAN, in his capacity as Chairman of the Rhode Island Coastal
Resources Management Council; PAUL E. LEMONT, in his capacity as
Vice Chairman of the Rhode Island Coastal Resources Management
Council; THOMAS RICCI; DAVID ABEDON; DONALD GOMEZ; K. JOSEPH
SHEKARCHI; NEIL GRAY; W. MICHAEL SULLIVAN; RAYMOND C. COIA; GERALD
P. ZARRELLA; BRUCE DAWSON; in their capacities as Members of the
Rhode Island Coastal Resources Management Council,

Defendants, Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Ripple,* Circuit Judges.

Michael Rubin, Assistant Attorney General, with whom Patrick
C. Lynch, Attorney General of the State of Rhode Island, Paul J.
Roberti, Assistant Attorney General, Brian A. Goldman, and the
Goldman Law Offices were on brief for the appellants.
Carol Iancu, Assistant Attorney General, and Martha Coakley,
Attorney General of Massachusetts, on brief for the Commonwealth
of Massachusetts and the City of Fall River, amicus curiae.

*
Of the Seventh Circuit, sitting by designation.
 Bruce F. Kiely, with whom Adam J. White, Baker Botts L.L.P.,
Gregory L. Benik, and Benik and Associates P.C. were on brief for
the appellees.

October 26, 2009
 LYNCH, Chief Judge. 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

-3-
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.

I.

We first briefly explain the regulatory framework that

governs this case.

Central to this dispute are two federal statutes, the

NGA, 15 U.S.C. §§ 717-717z, and the CZMA, 16 U.S.C. §§ 1451-66.

The NGA was originally passed in the 1930s to facilitate the growth

of the energy-transportation industry and requires FERC

authorization for the importing of natural gas. 15 U.S.C. §

717b(a). FERC's authority under the to NGA to regulate facilities

engaged in the import of natural gas has long been interpreted as

"plenary and elastic," Distrigas Corp. v. Federal Power Comm'n, 495

F.2d 1057, 1064 (D.C. Cir. 1974), and courts have interpreted the

NGA to preempt state regulatory authority within the scope of

FERC's jurisdiction, see, e.g., Schneidewind v. ANR Pipeline Co.,

485 U.S. 293 (1988). Following a 2005 amendment, the NGA

explicitly grants FERC "exclusive authority to approve or deny an

application for the siting, construction, expansion, or operation

of an LNG terminal." Id. § 717b(e)(1). Parties wishing to build

an LNG terminal must file an extensive application with FERC, 18

-4-
C.F.R. § 157.6, which must then consult with states regarding

safety and environmental questions, 15 U.S.C. § 717b-1(b).

The NGA creates a consolidated regulatory process for

approving LNG facilities that maintains the role of federal

agencies and, in circumscribed areas, state agencies. It does so

by limiting FERC's exclusive authority in two ways relevant to this

case. First, the NGA, except where expressly provided, does not

affect "any Federal agency's authorities or responsibilities

related to LNG terminals." Id. § 717b(e)(1) (emphasis added). In

addition, the NGA explicitly states that, unless otherwise

provided, it does not affect the rights of states under three

federal regulatory statutes, of which only the CZMA is pertinent to

this case. Id. § 717b(d)(1).

The CZMA establishes the relationship between state

bodies, like the Rhode Island CRMC, and federal agencies during the

permitting process for LNG terminal construction projects that

impact coastal zones. It provides states with a limited

opportunity to review applications to ensure they are consistent

with state regulations, 16 U.S.C. § 1456(c)(3)(A), and, in doing

so, grants states "a conditional veto over federally licensed or

permitted projects," Weaver's Cove, 583 F. Supp. 2d at 267. That

conditional veto, however, is itself subject to review.

In order to conduct a consistency review, state agencies

must first have obtained approval from the federal National Oceanic

-5-
Atmospheric Administration ("NOAA"), a Department of Commerce

agency, for the state agency's own coastal management plan. 16

U.S.C. §§ 1454, 1455(d)-(e), 1456(c)(3)(A). Coastal management

plans set forth general state policies for developing and

maintaining coastal areas and, as is the case in Rhode Island, may

include not only the conditions for federal consistency review but

also for state licensing programs.

Once a state coastal management plan has been approved,

an applicant for a federal permit wishing to undertake any activity

the state plan regulates must certify with the local agency that

the proposed activity is consistent with the coastal management

plan.1 Id. § 1456(c)(3)(A). In support of the application, the

applicant must submit all "necessary data and information"

identified in the coastal management plan. 15 C.F.R.

§ 930.58(a)(2). Under federal law, the state agency has thirty

days from the time the application was submitted to notify the

applicant and the federal agency if it takes the position that the

applicant has failed to submit all of the required information.

Id. § 930.60(a)(2).

Importantly, the CZMA limits the time a state may conduct

such a review, in order to prevent frustration of federal purposes.

1
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).

-6-
Whether CRMC failed to act within this limit is a key issue in this

case. Once an applicant submits its consistency certification, the

state agency has six months either to concur with the certification

or to object if it concludes that the proposed activity is

inconsistent with the coastal management plan. 16 U.S.C.

§ 1456(c)(3)(A). If the state agency fails to respond within six

months, the state's concurrence will be "conclusively presumed."

Id. If the application is incomplete and the state agency so

informs the applicant within the required thirty-day time period,

"the State agency's six-month review period will commence on the

date of receipt of the missing necessary data and information." 15

C.F.R. § 930.60(a)(2). However, the state agency's review of

whether the application is complete "is not a substantive review of

the adequacy of the information received," and the agency's request

for clarification of the information provided or its assertion that

the information is "substantively deficient" does not toll the six-

month review period. Id. § 930.60(c). These rules encourage

states to act quickly when reviewing applications so that no one

state can delay the federal approval process. Congress was

sufficiently concerned about the ability of local state agencies to

delay projects that it did not use a generalized standard, such as

"a reasonable period of time" as it did, for instance, in the

Telecommunications Act of 1996, 47 U.S.C. § 332(c)(3)(B), but

capped the time at six months.

-7-
 The CZMA also limits state authority to delay or prohibit

projects subject to consistency review, by providing for federal

review of state agency determinations. If the state agency objects

to consistency certification, the applicant may appeal the decision

to the Secretary of Commerce, who can override the objection on a

finding "that the activity is consistent with the objectives of

this chapter or is otherwise necessary in the interest of national

security." 16 U.S.C. 1456(c)(3)(A). The Secretary's decision, in

turn, may be reviewed in federal district court.2 See, e.g.,

Millennium Pipeline Co., L.P. v. Gutierrez, 424 F. Supp. 2d 168,

173-74 (D.D.C. 2006).

One other federal statute relevant to this case is the

Rivers and Harbors Act, at section 10. 33 U.S.C. § 403. It

prohibits construction or other work, such as dredging, in

navigable U.S. waters without congressional authorization or a

recommendation by the Army Corps Chief of Engineers as well as the

Secretary of the Army's authorization. Id. Because FERC's

exclusive authority under the NGA does not disturb the Army Corps's

authority under the Rivers and Harbors Act, 15 U.S.C. § 717b(e)(1),

parties seeking FERC approval for LNG terminal proposals that

2
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.

-8-
include dredging in navigable waterways, like Weaver's Cove, must

also apply for approval from the Army Corps.

In Rhode Island, the federally designated agency under

the CZMA is the appellant, CRMC. CRMC is responsible for

administering Rhode Island's coastal management plan, the Rhode

Island Coastal Resources Management Program ("CRMP"). When a party

wishes to conduct an activity listed in the CRMP, such as dredging

in Rhode Island, under state law, that party should obtain from the

CRMC a state law license called an "Assent." 04-000-010 R.I. Code

R. § 100.1. The more extensive "Category B Assent" process under

state law is required for approval of all projects that involve

major alterations proposed for Rhode Island tidal waters, shoreline

features, or areas contiguous with shoreline features. Id.

§§ 100.1(A), (D), 300.1. If the party's proposed listed activity

is also part of a project that is subject to federal licensing,

CRMC is the body tasked with providing the required federal

consistency review.

CRMC's document, labeled the Federal Consistency Manual,

emphasizes that although the Assent and consistency review

processes may overlap, they are distinct approvals. R.I. Coastal

Res. Mgmt. Council, Federal Consistency Manual 7, available at

http://www.crmc.ri.gov/regulations/Fed_Consistency.pdf. The same

list of activities that require Assents also require consistency

review. Id. at 12. Major alterations to the Rhode Island coastal

-9-
area that trigger the more extensive Category B Assent process

trigger the same level of review for consistency certifications.

Id. at 8.

Finally, the manual states that a grant or denial of an

Assent in an application when a consistency review is ongoing

constitutes a concurrence or an objection for the purposes of the

review. Id. at 13. A key difference between the two forms of

review is that whereas the CZMA limits consistency review through

the six-month time limit, administrative review by the Secretary of

Commerce, and federal judicial review, no federal statute limits

how long state decisions regarding Category B Assent may take or

provides for federal review.

The substantive provision of the state CRMP most

pertinent to this case is section 300.9(C), which requires approval

by the CRMC for all dredging activities. Particularly in dispute

in this case is the meaning of section 300.9(C)(7) of the CRMP,

which requires that "[w]hen disposal is proposed for approved

upland facilities, the applicant shall provide a letter of

acceptance from that facility, unless the disposal is approved for

the central landfill." 04-000-010 R.I. Code R. § 300.9(C)(7).

The CRMC also coordinates some of its responsibilities

with another state agency, the Rhode Island Department of

Environmental Management ("RIDEM"). Particularly relevant to this

case is RIDEM's role in identifying a list of approved upland sites

-10-
for disposal of dredged material, which CRMC is responsible for

incorporating into a comprehensive plan for dredged material

management. R.I. Gen. Laws § 46-6.1-5.

II.

Weaver's Cove proposes to build and operate a LNG

terminal in Fall River. The proposed project received FERC

approval in 2005, subject to certain conditions.3 Weaver's Cove

Energy, LLC, 112 F.E.R.C. ¶ 61,070, at 61,528 (2005). FERC found

that the proposal "will promote the public interest by increasing

the availability of natural gas supplies in the New England

market." Id.

Under the original LNG proposal, submitted in 2003, ships

carrying LNG would pass through waters in both Rhode Island and

Massachusetts, traveling up the Taunton River to the terminal

location. This has changed. According to Weaver's Cove's 2009

"Offshore Berth Amendment," the proposal now calls for ships to

deliver their cargo to an offshore berth in Mount Hope Bay, from

which the LNG would be transported via a submerged pipeline to the

onshore terminal. The offshore berth, the pipeline, and the

terminal would all be located in Massachusetts. In both the

3
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.

-11-
original proposal and the amended version, the only planned

activity in Rhode Island waters is dredging in a federal navigation

channel to ensure the safe passage of the LNG tankers. That

dredging is the subject of this litigation.

On December 19, 2003, Weaver's Cove filed an application,

pursuant to the NGA, for FERC approval of the proposed LNG

facility. FERC, as said, approved the application in 2005 subject

to a number of conditions, one of which was that Weaver's Cove was

to "file . . . prior to construction documentation of concurrence

from the [CRMC] that the project is consistent with the Rhode

Island [CRMP]." Weaver's Cove Energy, LLC, 112 F.E.R.C. at

¶¶ 61,550-51 (emphasis in original).

Turning to state regulatory requirements, such as

Category B Assent, FERC added that "state or local permits issued

with respect to the jurisdictional facilities authorized herein

must be consistent with the conditions in this order." Id. at

¶ 61,546. Although FERC encouraged Weaver's Cove and local

authorities to cooperate during local review of Weaver's Cove's

proposal, it made clear that "this does not mean that state and

local agencies, through application of state or local laws, may

prohibit or unreasonably delay the construction or operation of

facilities approved by this Commission." Id.

Following cross-motions for rehearing, FERC reaffirmed

this order in 2006 in all respects relevant to this case. Weaver's

-12-
Cove Energy, LLC, 114 F.E.R.C. ¶ 61,058, at 61,164 (2006). This

court declined then to review the conditional order on ripeness

grounds. City of Fall River v. Fed. Energy Regulatory Comm'n, 507

F.3d 1, 6 (1st Cir. 2007).

Because the proposed dredging activities also required

approval from the Army Corps under the Rivers and Harbors Act,

Weaver's Cove filed an application to the Army Corps on March 18,

2004. Dredging is a listed activity in Rhode Island's federally

approved CRMP. 04-000-010 R.I. Code R. § 300.9. On filing its

application to the Army Corps, Weaver's Cove was therefore also

required by the CZMA to file a consistency certification with CRMC,

which it did in July 2004. With this application, Weaver's Cove

also applied for Rhode Island's state law license for dredging,

Category B Assent. However, Weaver's Cove informed CRMC that it

believed the Assent unnecessary.

Within the thirty-day window to inform applicants for

concurrence that their applications are incomplete required by the

CZMA, CRMC informed Weaver's Cove by phone that its consistency

certification and Category B Assent application were, in CRMC's

view, incomplete on two grounds. The validity of those grounds is

at issue in this case. The first, quickly remedied by Weaver's

Cove, was that it had failed to submit the engineering plans with

the stamp of a Rhode Island engineer. The second ground, at issue

in this case, was that Weaver's Cove's application was incomplete,

-13-
and so the six-month clock was not ticking, because Weaver's Cove

had failed to provide documentation, pursuant to section

300.9(C)(7) of the CRMP, that dredged materials would be accepted

by "an approved upland facilit[y]." In a letter dated August 2,

2004, Weaver's Cove replied that because the dredged materials were

to be disposed of in Massachusetts, and not in Rhode Island,

section 300.9(C)(7) of the CRMP did not apply. On August 26, 2004,

CRMC responded, informing Weaver's Cove that its application was

still incomplete because it failed to file a Water Quality

Certificate but making no mention of the upland disposal issue.

After additional communications, the parties failed to resolve the

dispute. Because it claimed to lack necessary data and

information, CRMC did not commence review of Weaver's Cove's

consistency certification or its Category B assent. It still has

not done so. In short, as of this date, the appellant state agency

has not acted on the merits of an application which has been

pending before it since July 2004.

Over a year after its original application to CRMC,

Weaver's Cove made separate filings to NOAA, FERC, and the

Secretary of Commerce, requesting a determination that CRMC's

concurrence be "conclusively presumed" because CRMC had failed to

act on Weaver's Cove's application within the statutorily required

six-month deadline. 16 U.S.C. § 1456(c)(3)(A). NOAA took no

action, FERC concluded it did not have authority to address the

-14-
issue, and the Secretary of Commerce determined that he could not

review the matter without an actual objection from CRMC. This left

the matter of whether CRMC's concurrence should be conclusively

presumed to the courts for resolution.

Weaver's Cove filed suit in the U.S. District Court for

the District of Rhode Island on June 29, 2007. It sought

declaratory and injunctive relief, claiming that the disposal

information and the water quality certification, which the

appellant CRMC had requested, were not "necessary data and

information," as required by the CZMA. Weaver's Cove asserted the

CZMA's six-month deadline should not be tolled and CRMC's

concurrence should be conclusively presumed. In an amended

complaint, Weaver's Cove also argued that Category B Assent was

preempted by provisions of the NGA that grant FERC "exclusive

authority" in approving LNG facilities, 15 U.S.C. § 717b(e)(1), and

unlawful under the dormant Commerce Clause.

The district court granted summary judgment in favor of

Weaver's Cove, on both the CZMA and the NGA claims. Weaver's Cove,

583 F. Supp. 2d at 262. The court found that neither the disposal

information, nor the water quality certificate were necessary data

and information, and so Weaver's Cove application was not

incomplete. Id. at 272-73. Thus, CRMC had failed to meet the

statutory deadline and its concurrence was conclusively presumed.

Id. at 275. In particular, with respect to the disposal

-15-
information, the court found, based on statutory interpretation and

the interpretation which the other state agency of Rhode Island,

RIDEM, had adopted, that the term "approved upland facilities" in

section 300.9(C)(7) of the CRMP referred only to disposal

facilities in Rhode Island. Weaver’s Cove, 583 F. Supp. 2d at

270-75. Since Weaver's Cove intended to dispose of the dredged

material out of state (in Massachusetts) at that time,4 the court

concluded that CRMC could not require proof that the material would

be accepted. Id. The district court, acting under the NGA, also

held the Category B Assent process utilized by CRMC was preempted

on three grounds. First, it found the process expressly preempted

by the language of 15 U.S.C. § 717b(3)(1), granting FERC "exclusive

authority to approve or deny an application" to build an LNG

terminal. Weaver’s Cove, 583 F. Supp. 2d at 280-83. Second, the

court found the assent process implicitly field preempted because

"Congress clearly intended that the NGA occupy the entire field of

LNG regulation." Id. at 283-84. Finally, the district court found

the Category B Assent process preempted here because it

specifically conflicted with FERC's jurisdiction to regulate LNG

facilities. Id. at 284-85. The court also held that the case was

not rendered moot by the changes in the project that occurred after

4
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.

-16-
the date Weaver's Cove submitted its consistency certification.

Id. at 275-76. It did not reach the dormant Commerce Clause

question.

III.

A. Jurisdiction

We first hold that we have jurisdiction to hear this

case. CRMC does not raise any challenge to standing, mootness, or

ripeness.5 Massachusetts, in its brief amicus curiae to this court

(but not to the district court), argues broadly that there is no

case or controversy here, based on standing, mootness, and lack of

ripeness. Amici cannot insert new arguments, not made by a party,

into a case. Pharm. Research & Mfrs. of Am. v. Concannon, 249 F.3d

66, 74 n.5 (1st Cir. 2001). Nonetheless, we review standing,

mootness, and ripeness in the constitutional sense to see whether

we have Article III jurisdiction because we are independently

obligated to do so, regardless of whether the parties raise the

issue. Pagan v. Calderon, 448 F.3d 16, 26 (1st Cir. 2006). For

the reasons discussed below, we are satisfied we have jurisdiction.

We first address standing. Massachusetts asserts that

because Weaver's Cove has not shown that a decision in their favor

5
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.").

-17-
"will relieve a discrete injury" to them, Weaver's Cove lacks

standing. Massachusetts v. EPA, 549 U.S. 497, 525 (2007) (quoting

Larson v. Valente, 456 U.S. 228, 243 n.15 (1982)) (internal

quotation marks omitted). It argues that "events completely

unrelated to CRMC's regulatory processes" have prevented the

project from proceeding. Massachusetts is not entirely clear in

explaining what those events are, but its brief's earlier

description of the project suggests it is referring to challenges

Weaver's Cove has faced in satisfying other state and federal

permitting requirements. Because CRMC's regulatory requirements do

affect Weaver's Cove's ultimate ability to receive federal

approval, we conclude that Weaver's Cove has standing.

A plaintiff wishing to establish standing must show "a

concrete and particularized injury in fact, a causal connection

that permits tracing the claimed injury to the defendant's actions,

and a likelihood that prevailing in the action will afford some

redress for the injury." City of Bangor v. Citizens Commc'ns Co.,

532 F.3d 70, 92 (1st Cir. 2008) (quoting Me. People's Alliance &

Natural Res. Def. Council v. Mallinckrodt, Inc., 471 F.3d 277, 283

(1st Cir. 2006)) (internal quotation marks omitted). The plaintiff

need not show that "the defendant's actions are the very last step

in the chain of causation" for the injury. Bennet v. Spear, 520

U.S. 154, 169 (1997). It suffices if the plaintiff can show

-18-
"injury produced by determinative or coercive effect upon the

action of someone else." Id.

In this case, CRMC's actions have directly affected the

federal regulatory processes that determine whether the LNG

terminal project can proceed. Consistency review is a condition

for FERC approval, and FERC has stated it has no authority to

address CRMC's refusal to act.6 While CRMC's inaction may not be

the exclusive reason federal approval has not been granted, it is

clear that failure to obtain concurrence from CRMC has a

"determinative or coercive effect" on the federal agencies.

Bennet, 520 U.S. at 169. Weaver's Cove therefore has standing to

make its CZMA-related claims.

In addition, Weaver's Cove has standing to make its

preemption claims because it suffers a concrete injury from Rhode

Island subjecting it to a preempted state law. Even if CRMC's

concurrence in Weaver's Cove's consistency certification were

presumed, Category B Assent would still bar LNG construction if we

did not address it here. This "would impose a palpable and

considerable hardship" on its project. Pac. Gas & Elec. Co. v.

State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 201-02

(1983).

6
The Army Corps also requires Weaver's Cove to submit
verification that its application to CRMC is complete before it can
complete its review.

-19-
 This case is not rendered moot by Weaver’s Cove's failure

to achieve complete regulatory approval for its original proposal

or by its submission of the Offshore Berth Amendment. “[A] case is

moot when the issues presented are no longer ‘live’ or the parties

lack a legally cognizable interest in the outcome.” Powell v.

McCormack, 395 U.S. 486, 496 (1969). We will only find a case moot

if an intervening event “makes it impossible for the court to grant

any effectual relief.” Gulf of Me. Fisherman’s Alliance v. Daley,

292 F.3d 84, 88 (1st Cir. 2002) (quoting Church of Scientology v.

United States, 506 U.S. 9, 12 (1992)) (internal quotation marks

omitted).

Weaver’s Cove’s efforts to obtain regulatory approval for

the LNG terminal from all of the relevant actors do indeed

constitute a live issue. These efforts are ongoing and the

Offshore Berth Amendment represents an attempt by Weaver's Cove to

address some of the concerns that may have earlier delayed

approval. While Weaver’s Cove still has conditions to meet

following the amendment, Weaver's Cove did, for example, get

approval from the Coast Guard, which previously had been a hurdle.

Since CRMC's consistency certification remains a requirement of

FERC and of the Army Corps, that question is clearly live. This is

especially so because the Offshore Berth Amendment itself does not

render moot the dispute here with Rhode Island. As the Army Corps

has itself noted, the planned dredging activities in Rhode Island

-20-
have not changed, even under the amendment.7 A decision in favor

of the plaintiff in this case would provide "effectual relief"

because it would clear a barrier to achieving approval for the

project.

This case is also ripe. Although federal regulatory

approval for the Offshore Berth Amendment is ongoing, our review of

this case is neither “advisory” nor “irrelevant to the ultimate

approvability of the project.” Fall River, 507 F.3d at 8.

Massachusetts cites Fall River in an attempt to argue

that this case will lack ripeness until the project receives

authorization from several key federal agencies. But it disregards

important differences in the facts and procedural background of

this case. In Fall River, we held that a challenge to FERC's

conditional approval of this project was not ripe because the

decision was not final until the completion of reviews by the

United States Coast Guard and the Department of the Interior. Id.

at 7. Because FERC's decision was not final we could not be sure

our opinion would not be advisory. Id. at 7-8. In contrast, the

plaintiff's requested relief in this case would be final. CRMC's

consistency review and Category B Assent requirements would cease

7
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.

-21-
to be barriers to ultimate approval of the project. Another

difference from Fall River is that FERC and the other relevant

agencies have expressly declined to resolve the issue raised by

this appeal on the grounds that they have no authority to do so.

It is true that resolutions of these issues might not secure the

project's ultimate approval, but it would neither be "advisory" nor

"irrelevant."

B. CZMA Consistency Review: "Conclusive Presumption of
Concurrence"

We hold that CRMC’s concurrence with Weaver’s Cove’s

dredging plans must be conclusively presumed under 16 U.S.C.

§ 1456(c)(3)(A). We affirm the district court. Weaver’s Cove, 583

F. Supp. 2d at 270-75.

A district court may grant summary judgment on a finding

that "there is no genuine issue as to any material fact and that

the movant is entitled to judgment as a matter of law." Fed. R.

Civ. P. 56(c). "An issue is genuine 'if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party,'

and a fact is material if it has the 'potential to affect the

outcome of the suit.'" Velázquez-García v. Horizon Lines of P.R.,

Inc., 473 F.3d 11, 15 (1st Cir. 2007) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 224, 248 (1986); Santiago-Ramos v. Centennial

P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000)) (citation

omitted). On appeal, we review a district court's grant of summary

-22-
judgment de novo. Torrech-Hernandez v. General Elec. Co., 519 F.3d

41, 46 (1st Cir. 2008).

We review the district court’s holding that, in this

case, a letter certifying acceptance of dredged material, as listed

in section 300.9(C)(7) of the CRMP, did not constitute necessary

data and information within the meaning of 15 C.F.R. § 930.58(a)(2)

because Weaver’s Cove did not intend to dispose of the waste in

Rhode Island.8 Weaver’s Cove, 583 F. Supp. 2d at 271-72. If, as

CRMC contends, the letter is necessary data and information

required by the CRMP, CRMC is not compelled to commence reviewing

the consistency certification until Weaver's Cove provides it. 15

C.F.R. § 930.60(a)(2). The six-month deadline for presumed

concurrence would be tolled until that time. Id. If, on the other

hand, the letter is not necessary data and information, as the

district court found, the six-month period from Weaver's Cove's

submission of the consistency certification in July 2004 has

clearly expired, and we are required to find CRMC's concurrence

8
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.

-23-
presumed. 16 U.S.C. § 1456(c)(3)(A). We affirm the district

court's conclusion.

As the district court noted, the state CRMP does not

define "approved upland facilit[y]." Weaver's Cove, 583 F. Supp.

2d at 271. However, other Rhode Island laws have shed light on the

language's meaning. Rhode Island's Marine Waterways and Boating

Facilities Act of 2001 ("Waterways and Boating Act"), R.I. Gen.

Laws §§ 46-6.1-1 to -10, and associated regulations, set forth a

comprehensive system regulating dredging activities and disposal of

dredged materials in the state. The district judge relied on these

regulations to conclude that facilities outside of Rhode Island are

not among the "approved upland facilities" from which the CRMP

requires a letter of acceptance. Weaver’s Cove, 583 F. Supp. 2d at

271-72.

We agree with the district court that the language of

section 300.9(C)(7) of the CRMP can only be read to cover

facilities located in the state of Rhode Island because the state's

regulatory framework for dredging only provides for the

identification of "approved upland facilities" within the state.

We begin with the Rhode Island statutes that govern

regulation of dredging in the state. Rhode Island law makes the

CRMC responsible for "prepar[ing], adopt[ing] and maintain[ing]

. . . a comprehensive plan for dredged material management for

dredging that takes place in the coastal zone." R.I. Gen. Laws.

-24-
§ 46-6.1-5(a). But the same statute delegates to RIDEM the task of

"adopt[ing] by rule a list of upland sites and types of areas

suitable for beneficial use and disposal of dredged materials."

Id. § 46-6.1-5(b). This list is then "incorporated in the [CRMC's]

comprehensive plan for dredged material management." Id. The

Waterways and Boating Act does not define "upland sites," but it

does define "[u]pland areas" as "areas that are not in the coastal

zone." Id. § 46-6.1-4(16). Thus, while both agencies may be

responsible for interpreting whether "upland disposal facilities"

can include out of state disposal facilities, only RIDEM is charged

with approving upland sites.

RIDEM has in turn promulgated its own Rules and

Regulations for Dredging and the Management of Dredged Material

("Dredging Regulations") pursuant to the Waterways and Boating Act.

R.I. Dept. of Envtl. Mgmt., Rules and Regulations for Dredging and

the Management of Dredged Material § 2, available at

http://www.dem.ri.gov/pubs/regs/regs/water/dred0203.pdf

[hereinafter "R.I. Dredging Regulations"]. These regulations are

also intended to be consistent with the CZMA, id., and must be

implemented according to a written protocol jointly adopted by CRMC

and RIDEM, id. § 3. Among the stated purposes of these regulations

is to "[i]dentify and list upland sites suitable for beneficial use

and/or disposal of dredged material," id. § 1.5, and, as the

district court noted, the Dredging Regulations "apply to all

-25-
aspects of dredging proposed in marine waters of the State of Rhode

Island," id. § 3. The Dredging Regulations do not contain an

express definition for "approved upland facilities," but they do

define "Upland Areas" more narrowly than the corresponding term in

the Waterways and Boating Act, R.I. Gen. Laws § 46-6.1-4(16), as

"[a]ll areas of the state that are not in the coastal zone." R.I.

Dredging Regulations § 4.20 (emphasis added).

Since RIDEM is tasked with approving upland disposal

facilities, R.I. Gen. Laws § 46-6.1-5(b), and it only approves

upland facilities within the state of Rhode Island, R.I. Dredging

Regulations § 4.20, it follows that the "approved upland

facilities" referred to by section 300.9(C)(7) of the CRMP should

be read to be facilities within the state of Rhode Island. "To

hold otherwise would render the C[R]MP's specific language a

nullity." Weaver’s Cove, 583 F. Supp. 2d at 272.

In any event, appellant has not pointed to any regulatory

process for the approval of upland sites outside of Rhode Island,

nor has it produced a list of approved facilities outside of the

state. Absent language in Rhode Island law to the contrary, we

presume state laws, like this one, not to have extraterritorial

effect. Cf. Carnero v. Boston Sci. Corp., 433 F.3d 1, 7 (1st Cir.

2006).

CRMC responds that it has an interest in confirming that

material dredged from its coast is properly disposed, regardless of

-26-
the ultimate location, and that the district court improperly

relied on another agency's interpretation of the Waterways and

Boating Act, which it administers. Citing language from both the

Waterways and Boating Act, R.I. Gen. Laws § 46-6.1-3(1), and the

CRMC's organic statute, id. § 46-23-1(e), that designate CRMC as

the "lead agency" for purposes of regulating dredging activities,

CRMC argues that federal courts must defer to its broader

interpretation of its own regulations for its own purposes. It

explains that although RIDEM may, in its limited role of approving

disposal sites, only be concerned with upland facilities within

Rhode Island, CRMC is more broadly concerned with ensuring the

proper disposal of dredged material.9

CRMC cites no authority in support of its view, and in

this context, the view is untenable. Since for the purposes of

CZMA consistency review, we are only concerned with the

requirements of the CRMP, CRMC's argument that it is entitled to

deference in its interpretation of the Waterways and Boating Act is

inapposite. We are concerned only with its interpretation of

9
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.

-27-
section 3009.(C)(7) of the CRMP, and complementary regulatory

schemes to the extent they shed light on its meaning.

It is true, as CRMC points out, that federal agency

interpretations of their own regulations (when authorized by

Congress) are "controlling unless 'plainly erroneous or

inconsistent with the regulation.'" Auer v. Robbins, 519 U.S. 452,

461 (1997) (quoting Robertson v. Methow Valley Citizens Council,

490 U.S. 332, 359 (1989)). However, even if we applied that

standard here, CRMC cannot satisfy it because the plain language of

section 300.9(C)(7) of the CRMP calls for "approved upland

facilities" (emphasis added). Thus, even if upland facilities can

be interpreted to include facilities outside of Rhode Island, CRMC

has not pointed to any regulatory scheme that deals with the

approval of out-of-state facilities or even a list of approved out-

of-state facilities. The only regulatory scheme for approving

upland facilities is that administered by RIDEM, and CRMC's

interpretation of its regulation is therefore clearly erroneous.10

This construction of state law also permits us to avoid

an issue of whether a different construction would violate federal

law. As noted, see supra note 1, an individual state may not

10
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.

-28-
purport to undertake out of state regulation for consistency review

purposes without getting NOAA's consent. 15 C.F.R. § 930.154(e).

C. Preemption of State Category B Assent to Dredging by
Section 3 of the Natural Gas Act and by FERC's
Conditional Approval

We review the district court's finding that CRMC's state

law licensing program for coastal dredging, the Category B Assent

process, is preempted by the NGA, at least on the facts here. At

stake is whether CRMC may still delay the project based on Weaver's

Cove's failure to satisfy section 300.9(C)(7) of the CRMP or other

CRMP requirements, despite our conclusion that concurrence in

Weaver's Cove's consistency certification should be presumed. Our

standard when reviewing a district court's finding of preemption is

de novo. Fitzgerald v. Harris, 549 F.3d 46, 52 (1st Cir. 2008);

SPGGC, LLC v. Ayotte, 488 F.3d 525, 530 (1st Cir. 2007).

While the district court found the Category B Assent

process preempted on a number of grounds, Weaver’s Cove, 583 F.

Supp. 2d at 279-85, we affirm for the narrowest reason, that of

conflict preemption.

In its order, FERC analyzed Weaver's Cove's proposed

dredging activities in both Rhode Island and Massachusetts,

assessed the environmental impact the dredging would have and

compared it with alternatives, and analyzed the effect on the water

and wildlife, land use, recreation, ship traffic, and air quality.

Weaver's Cove Energy, LLC, 112 F.E.R.C. at ¶ 61,540 (discussing

-29-
environmental issues reviewed and adopting the findings of FERC's

Final Environmental Impact Statement ("FEIS")); Office of Energy

Projects, Fed. Energy Regulatory Comm'n, Docket No. CP04-36-000,

Weaver's Cove LNG Project Final Environmental Impact Statement (May

2005) [hereinafter "Weaver's Cove FEIS"]. Further, FERC concluded

that the dredging was part of the construction and operation of the

terminal project. Thus, Category B Assent clearly conflicts with

FERC's "exclusive authority," as exercised here, to license the

"siting, construction, expansion, or operation" of LNG terminals.

15 U.S.C. § 717b(e)(1).11

To simplify a complex area of law, preemption arguments

are generally divided into three categories. Fitzgerald, 549 F.3d

at 52. The first, express preemption, results from language in a

statute revealing an explicit congressional intent to preempt state

law. Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25,

31 (1996). The second, field preemption, is that Congress may

implicitly preempt a state law by creating a pervasive scheme of

regulation. Fitzgerald, 549 F.3d at 52; N. Natural Gas Co. v. Iowa

Utils. Bd., 377 F.3d 817, 823 (8th Cir. 2004) (holding a state's

11
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.

-30-
site-specific environmental review field preempted because FERC has

authority under the NGA to consider environmental issues). The

third category is conflict preemption. In this category, state law

is "pre-empted to the extent it actually conflicts with federal

law, that is, when compliance with both state and federal law is

impossible, or when the state law stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of

Congress." Id. at 53 (quoting Good v. Altria Group, Inc., 501 F.3d

29, 47 (1st Cir. 2007)).

Weaver's Cove asks us to find preemption under the first

two grounds. It also stresses the district court's application of

a field preemption test set forth in a NGA preemption case.

Weaver’s Cove, 583 F. Supp. 2d at 285 (citing Schneidewind, 485

U.S. at 301).

We prefer to decide on the narrowest grounds: conflict

preemption. In this case, FERC has interpreted the dredging

activities in the Weaver's Cove's project, including those in Rhode

Island, to be within its preemptive jurisdiction. See Fitzgerald,

549 F.3d at 55 ("The proposition that federal agency action, taken

pursuant to its interpretation of a statute, may itself preempt is

quite correct."). CRMC does not argue that the proposed dredging

is not a part of the LNG terminal's "siting, construction, . . . or

operation" under 15 U.S.C. § 717b(e)(1), although Massachusetts, as

-31-
amicus, does.12 In its original order, FERC extensively reviewed

the dredging as part of the overall terminal construction and

operational plan. Weaver's Cove Energy, LLC, 112 F.E.R.C. at

¶ 61,535-36, 61,545, 61,550. Here, FERC carefully reviewed the

very dredging Rhode Island seeks to further regulate and, after

considering environmental impacts, authorized the project. Id. at

61,546. The FEIS, adopted by reference in the FERC order, id. at

61,540, found that the dredging was necessary "to accommodate the

passage of LNG ships" to the facility, Weaver's Cove FEIS, at 2-25

(May 2005), and that it would be impossible to "reduce the volume

or extent of dredging and still satisfy the objectives of the

project at the proposed site," id. at 3-70. Thus, FERC concluded

that the dredging was part of the construction and the operation of

the terminal facility. That ruling is final and binding because no

objections were made to FERC's findings on these points in the

parties' request for rehearing.13 Further, the dredging is in an

approved federal navigation channel.

12
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.
13
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.").

-32-
 By finding the dredging activities were part of the

construction and operation of the terminal facility, FERC has

interpreted the Rhode Island dredging at issue in this case to be

within its jurisdiction. Thus, the Category B Assent process

utilized by Rhode Island clearly collides with FERC's delegated

authority and is preempted. FERC made this clear in its order

regarding Weaver's Cove's application, which stated that state

agencies could not use state law to "prohibit or unreasonably delay

the construction or operation of facilities approved by this

Commission." Weaver's Cove Energy, LLC, 112 F.E.R.C. at ¶ 61,546.

FERC affirmed this point on rehearing, in response to the City of

Fall River's challenge. Weaver's Cove Energy, LLC, 114 F.E.R.C. at

¶ 61,185-86.

CRMC's handling of the Category B Assent process both

conflicts with and is an obstacle to the authority FERC has

asserted in this case. Unlike CZMA consistency review, which

allows the CRMC to review the dredging proposals, limited by a six-

month deadline and administrative and federal judicial review, the

Category B Assent process contains no such limitations, and to this

date the appellant has not processed this application or reached

any decision on the merits. CRMC has taken the position that it

must carry out the Category B Assent process concurrently with the

consistency review, and because the consistency review has not

commenced, it cannot address the application for Category B Assent.

-33-
Thus, even if concurrence were presumed, CRMC's position is that

the Category B Assent process would itself independently block full

licensing of the facility. This is clearly an application of state

law that delays or has the potential to prohibit the ultimate

licensing and construction of the LNG terminal. Weaver's Cove

Energy, LLC, 112 F.E.R.C. at ¶ 61,546. Further, CRMC's two bites

at the apple approach necessarily conflicts with the federal

process for and interest in defining what is necessary data.

Because CRMC's actions here conflict with FERC's jurisdiction and

the limits for consistency review, it is preempted.14

14
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

-34-
D. Rivers and Harbors Act

Finally, CRMC argues that the federal Rivers and Harbors

Act saves its state Category B Assent process from preemption.

Pointing to language in the NGA qualifying FERC's exclusive

authority to the extent that it affects law "related to" the

authority of other federal agencies, 15 U.S.C. § 717b(e)(1), CRMC

argues that the NGA preserves not only the Army Corps's role in

approving dredging activities but also the entire body of law

"related to" that role. Since the Army Corps's approval process

under the Rivers and Harbors Act does not preempt state licensing

schemes, CRMC argues that the savings clause in the NGA must

therefore protect Category B Assent.

These arguments, assuming arguendo they were preserved in

the district court, are meritless. The language of § 717(b)(e)(1)

is plainly aimed at preserving the authority of federal agencies

and not that of state agencies like CRMC. CRMC's argument that its

state licensing program is "related to" the authority of FERC is

also untenable. As CRMC points out in other parts of its brief,

CRMC's authority to require Category B Assent derives from Rhode

Island's status as a sovereign, whereas the Army Corps's authority

derives from the federal government. The fact that the Rivers and

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).

-35-
Harbors Act does not itself preempt Category B Assent is therefore

irrelevant to the NGA's preemptive effect.

Under its exclusive authority, FERC considers the

dredging in Rhode Island to be a part of the LNG construction.

FERC, as required by the NGA, has provided CRMC an opportunity to

review the project through CZMA consistency review. CRMC cannot

now avoid presumed concurrence by relying on a nearly identical

state law licensing procedure.

The district court's judgment is affirmed.

-36-