Summary of a Recent
Judicial
Development in
Environmental Law
Party Lacked Standing to Bring Action to Obtain Dredge-and-Fill Permit
Eric H. FoyNational AgLaw Center Research Associate
Summary of Decision
In Weaver's Cove Energy, LLC v. Rhode Island Department of Environmental Management, 524 F.3d 1330 (D.C. Cir. 2008), the United States Court of Appeals for the District of Columbia Circuit held that Weaver's Cove Energy, LLC (Weaver's Cove) lacked standing to bring its action against the Rhode Island Department of Environmental Management (RIDEM) and the Massachusetts Department of Environmental Protection (MDEP). Weaver's Cove sought a declaration that the inaction by the two agencies constituted a waiver of certification requirements for its proposed dredge-and-fill operations. The court held Weaver's Cove lacked standing because it failed to prove that the agencies' inaction injured it in any manner.
Background
Weaver's Cove wanted to build a liquefied natural gas import terminal in Massachusetts, but it needed several permits before it could begin the project. Id. at 1331. To build a fully functional terminal, it needed to dredge parts of the Taunton River in Massachusetts and Mount Hope Bay in Rhode Island, which required a dredge-and-fill permit from the Army Corps of Engineers. Id. In 2004, Weaver's Cove submitted certification applications to the RIDEM and the MDEP; however, after waiting for over three years to receive its certifications, Weaver's Cove filed petitions in the instant court for review of the agencies' failure to act. Id.
Arguments
Weaver's Cove asked the court for a declaration that each state agency had waived its right to deny the requested certification by failing to act on the application request within one year. Id. The agencies objected to Weaver's Cove's request and alleged that: the company lacked a cause of action; the court lacked the power to grant the requested relief; the petitions were barred by equitable estoppel and by the Eleventh Amendment to the Constitution of the United States; the petitions were impermissible collateral attacks upon decisions of the Army Corps of Engineers; and the company's argument failed on the merits. Id.
Analysis and Holdings
Dredge-and-fill permits are issued pursuant to § 404 of the Clean Water Act, 33 U.S.C. § 1344. Id. For a state to participate in the certification process, it must act within a reasonable period of time after receipt of a certification request. Id. If a state fails to act within a reasonable period of time, the certification requirements will be considered waived. Id. In the instant action, the court held that Weaver's Cove lacked standing; therefore, the agencies' action or inaction did not influence the court's decision. Id.
For a party to have standing, the court held that three elements must be satisfied:
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.
Id. at 1332-33.
In the instant action, Weaver's Cove never alleged to be injured by the state agencies' inaction. Id. at 1333. By filing its petition, the company sought to actually benefit from the inaction. Id. For this reason, and because the court found that the instant action would not address company's hypothetical injury, the court held that it was without jurisdiction to hear the case. Id.
The case was decided on May 2, 2008.