Weaver's Cove Energy, LLC v. State of Rhode Island Department of Environmental Management

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 7, 2008 Decided May 2, 2008

No. 07-1235

WEAVER'S COVE ENERGY, LLC,
PETITIONER

v.

STATE OF RHODE ISLAND DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT AND W. MICHAEL SULLIVAN, DIRECTOR OF
THE RHODE ISLAND DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT,
RESPONDENTS

STATE OF RHODE ISLAND,
INTERVENOR
______

Consolidated with 07-1238
______

On Petition for Review of the Inaction of the Rhode Island
Department of Environmental Management
______

Bruce F. Kiely argued the cause for petitioner. With him on
the briefs were G. Mark Cook and Adam J. White.

Carol Iancu, Assistant Attorney General, Attorney
General's Office of Commonwealth of Massachusetts, argued
the cause for respondents. With her on the brief were Martha
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Coakley, Attorney General, Patrick C. Lynch, Attorney General,
Attorney General’s Office of the State of Rhode Island, Paul J.
Roberti, Assistant Attorney General, Terence J. Tierney, Special
Assistant Attorney General, Patty Allison Fairweather, Marisa
A. Desautel, and Susan B. Wilson, Attorneys, and Alan I. Baron.

Before: GINSBURG, HENDERSON, and GRIFFITH, Circuit
Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge: 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 Clean Water Act. 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.
Instead, we must dismiss the petitions for want of a case or
controversy under Article III of the Constitution of the United
States.

I. Background

WCE wants to build a liquefied natural gas (LNG) import
terminal in Massachusetts. In order to render the facility
operational, WCE will have to dredge parts of the Taunton River
in Massachusetts and of Mount Hope Bay in Rhode Island.
WCE needs several permits before it can proceed with the
project, including, as relevant here, a dredge-and-fill permit
from the Army Corps of Engineers issued pursuant to § 404 of
the Clean Water Act (CWA), 33 U.S.C. § 1344. WCE’s 2004
application for that permit is pending. So, too, is WCE’s
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application to the United States Coast Guard for a letter of
recommendation certifying that the waterway near the terminal
is suitable for LNG marine traffic. See 33 C.F.R. § 127.009.

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
application.” Id.

In early 2004 WCE submitted applications for § 401
certifications to the RIDEM and the MassDEP.* When two
years had passed without the MassDEP deciding whether
WCE’s application was “administratively complete,” 310
C.M.R. § 4.04(2)(b)(1), WCE amended its application; the
MassDEP accepted the application as complete in December
2006. Meanwhile, the RIDEM had informed WCE that its
*
Whether WCE needs a § 401 certification from the RIDEM in
order to obtain a permit from the Army Corps is uncertain. WCE
asked the RIDEM to approve its proposed dredging, but the
regulations of the Army Corps provide that, unlike an application for
filling, an application for dredging does not require a § 401
certification. See 33 C.F.R. §§ 323.2(d), 325.1(d). The RIDEM
nonetheless maintains that WCE must obtain a § 401 certification in
order to dredge, and we assume as much for the purpose of this case.
WCE's application to the MassDEP concerns both dredging and
filling, so it is undisputed that WCE needs a § 401 certification from
the MassDEP.
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application was incomplete eight months after its submission;
WCE submitted an updated application in January 2006 and, at
the RIDEM’s request, continued to submit additional
information until May 2007.

In June 2007, the MassDEP announced it would stay its
review of WCE’s application pending the Coast Guard’s
resolution of WCE’s application. Shortly thereafter the RIDEM
said it would “continue its review” of WCE’s application but
would “consider and review ... all applicable findings of the ...
Coast Guard.” WCE then filed petitions in this court for review
of the state agencies’ failure to act upon its applications. Later
in 2007 the RIDEM preliminarily denied and the MassDEP
preliminarily granted WCE’s certification. Each decision is the
subject of a pending appeal within the issuing state agency.

II. Analysis

WCE filed the present petitions for review pursuant to §
19(d)(2) of the Natural Gas Act, 15 U.S.C. § 717r(d)(2), which
grants this court “exclusive jurisdiction over any civil action for
the review of an alleged failure to act by a ... State
administrative agency acting pursuant to Federal law to issue,
condition, or deny any permit required under Federal law ... for
a facility subject” to the Natural Gas Act, here the proposed
LNG terminal. Although WCE petitions for review of the state
agencies’ failure to act, it does not ask for a remand directing the
state agencies to act, see 15 U.S.C. § 717r(d)(3); nor would such
a remand have any effect, for the state agencies have already
acted. Rather, it asks this court for a declaration that each state
agency, by failing to act upon WCE’s application within one
year of its submission, has waived its right to deny the requested
certification.

The state agencies raise numerous objections to the
petitions. They contend WCE lacks a cause of action; the court
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lacks the power to grant the requested relief; the petitions are
barred by equitable estoppel and by the Eleventh Amendment to
the Constitution of the United States; the petitions are
impermissible collateral attacks upon decisions of the Army
Corps; and WCE’s argument fails on the merits.

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. As
the Supreme Court has explained:

[T]he irreducible constitutional minimum of standing
contains three elements. First, the plaintiff must have
suffered an injury in fact - an invasion of a legally
protected interest which is (a) concrete and particularized;
and (b) actual or imminent, not conjectural or hypothetical.
Second, there must be a causal connection between the
injury and the conduct complained of - the injury has to be
fairly traceable to the challenged action of the defendant,
and not the result of the independent action of some third
party not before the court. Third, it must be likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)
(citations, internal quotation marks, and alterations omitted).

WCE asserts in its brief that its standing is “self-evident,
because it is the applicant for a Section 401 Water Quality
Certification before [the state agencies]: it is the ‘object of the
action (or forgone action) at issue’” [Pet. Br. at 24] (quoting
Sierra Club v. EPA, 292 F.3d 895, 899-900 (D.C. Cir. 2002)).
The state agencies’ inaction, however, cannot support WCE’s
standing because WCE 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
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issue timely rulings on WCE’s applications, waived their rights
to deny the certifications WCE seeks.

By what, then, is WCE really aggrieved? We see three
possibilities, but none supports WCE’s standing to sue the state
agencies. The first is not a legally cognizable injury; the second
was not caused by the state agencies; and the third would not be
redressed by the remedy WCE seeks.

The first is the denial of a § 401 certification by a state
agency. At present, however, neither agency has made a final
decision on WCE’s application; the RIDEM issued an initial
denial and the MassDEP issued an initial grant, but each
decision is the subject of a pending administrative appeal.

Even a final adverse decision would not support WCE’s
standing, however, because WCE’s claim is that the States have
waived their right to deny a certification. By WCE’s own lights,
that is, any denial of its application for a § 401 certification
would be too late in coming and therefore null and void.
Logically, a petitioner cannot challenge an action as “an
invasion of a legally protected interest” and simultaneously
contend the action is of no legal significance. If either state
agency ultimately denies WCE a § 401 certification, then WCE
may argue to the Army Corps that the denial is void. If the
Army Corps disagrees, then WCE may challenge its decision in
court.

Second, WCE might be challenging the anticipated decision
of the Army Corps to deny a dredge-and-fill permit on the
ground that the Army Corps is bound by a State’s refusal to
issue a § 401 certification. The denial of a dredge-and-fill
permit would undoubtedly be a legally cognizable injury. That
injury, however, would be caused by the Army Corps, which is
not a respondent here, not by the state agencies, which are the
respondents. A’s injuring B does not create a case or
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controversy between B and C. See, e.g., Linda R.S. v. Richard
D., 410 U.S. 614, 618 (1973).

At argument counsel for WCE suggested a third possibility:
The state proceedings themselves are causing WCE injury by
delaying the Army Corps’ consideration of its application for a
dredge-and-fill permit. According to counsel, the Army Corps
refuses to consider WCE’s application until the state agencies
have completed their rounds, and a declaration by this court that
the States have waived their rights under § 401 would cause the
Army Corps to process its application without delay.

This suggestion is closer to the mark, for an agency’s delay
in processing an application may constitute a legally cognizable
injury, see, e.g., Va. State Corp. Comm’n v. FERC, 468 F.3d
845, 848-49 (D.C. Cir. 2006); Utah Animal Rights Coal. v. Salt
Lake City Corp., 371 F.3d 1248, 1256 (10th Cir. 2004). Even if
the Army Corps’ delay in processing WCE’s § 404 application
constitutes an injury, however, that injury would not be
redressed by our declaring the States waived their right of
approval. The States would be without authority to issue a
certification decision binding upon the Army Corps, but they
would still, WCE concedes, have authority to issue a decision
the Army Corps could consider. Thus, the only effect of such a
declaration would be to advise the Army Corps that it would not
be bound by a State’s denial of a § 401 certification. The record
indicates, however, that such a declaration would not alter the
Army Corps’ timetable for acting upon WCE’s application for
a § 404 permit.

In July 2007, the MassDEP requested and the Army Corps
granted an extension to December 15 last for the State to act
upon WCE’s request for a § 401 certification. The MassDEP
issued its initial grant of the certification on December 14.
According to the state agencies, the Army Corps’ decision to
grant an extension demonstrates the Army Corps has already
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concluded the one-year clock under § 401 began to run in
December 2006, and this suit is an impermissible collateral
attack upon that decision. In response WCE concedes the
extension was lawful but claims it was not an interpretation of
§ 401; rather, it demonstrated the Army Corps is willing to
exercise its discretion to accept an untimely certification. Cf.
Puerto Rico Sun Oil Co. v. EPA, 8 F.3d 73, 79-80 (1st Cir. 1993)
(holding the EPA has the discretion to consider an untimely
certification by a state agency).

Assuming WCE’s characterization is correct – an issue we
do not decide – it only goes to show WCE’s claimed injury is
not redressable by a court. If the Army Corps has already
indicated its willingness to exercise its discretion to accept an
untimely certification, then it hardly seems likely the Army
Corps will pass upon WCE’s permit application until the States
issue their final decisions, regardless whether those decisions are
binding upon the Army Corps. Our declaring that the Army
Corps is not bound by the States’ final decisions, that is, would
not make it “likely, as opposed to merely speculative, that
[WCE’s] injury will be redressed,” i.e., by spurring the Army
Corps into action. Lujan, 504 U.S. at 561 (internal quotation
marks omitted).

III. Conclusion

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.