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R.I. still in fight against proposed LNG terminal

01:00 AM EST on Wednesday, January 27, 2010

By Peter B. Lord

Journal Environment Writer

PROVIDENCE — When a federal appeals court rejected efforts by the state’s coastal agency last fall to review plans for a liquefied natural gas terminal in Mount Hope Bay, some thought the state has lost its only chance to stop the terminal. But that is not so.

The state Department of Environmental Management has denied two applications filed by the LNG developers and both cases are alive in state and federal courts.

“Some people thought all was lost for the state,” DEM Director W. Michael Sullivan said. “But we’re in three courts on this.”

The DEM denied Weaver’s Cove Energy’s applications for a water-quality certification and a dredging permit for its proposed $700-million LNG terminal on Aug. 10, 2007. The company planned to dredge 230,000 cubic yards of sediment from the shipping channel to Mount Hope Bay in addition to another 2.3 million cubic yards in Massachusetts waters.

The DEM said it denied the applications because Weaver’s Cove failed to submit sufficient information and it failed to show that its activities would not violate the state’s anti-degradation standards.

The company appealed to the DEM’s Administrative Adjudication Division, but the division in February upheld most of the reasons Sullivan cited in denying the permits.

Weaver’s Cove responded by filing appeals in the state Superior Court, and then challenged the state review process with a complaint in federal District Court.

The federal complaint asks that the DEM actions be found “illegal, null and void, and unenforceable” because they are preempted by the federal Natural Gas Act and regulations enforced by the Federal Energy Regulatory Commission.

A similar tact by the company was successful last year as it fought efforts by the state’s Coastal Resources Management Council to review the plans for dredging.

Three judges of the U.S. Court of Appeals ruled in November that the CRMC lost its chance to rule on the controversial terminal by failing to make a timely decision.

The CRMC’s lawyers argued that they didn’t rule on Weaver’s Cove’s permit applications because they didn’t feel they were complete.

The U.S. District Court found in favor of the developers. It concluded the application data was not incomplete and the agency failed to meet statutory deadlines for acting.

The Appeals Court upheld the lower court, ruling that dredging issues were under FERC authority, preempting the CRMC.

The developers announced that the decision would allow them to move ahead with their project and continue pursuing remaining permits with Massachusetts and federal agencies.

DEM lawyer Marisa A. Desautel said the developer’s complaint against the DEM was stayed pending the outcome of the CRMC case. So the next move is up to Weaver’s Cove. The company was unavailable for comment Tuesday.

plord@projo.com

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