Friday, April 11, 2008

What's Next for Broadwater? Nothing. It's Dead, Even If Broadwater Wins An Appeal

There was a lot of talk from Broadwater's people yesterday about how New York's rejection of the proposal for a floating LNG terminal in Long Island Sound is just one step in the approval process and that there are avenues of appeal open that could still lead to approval.

Here's what I think is the truth: Broadwater is dead.

Why? Because even if the Broadwater people appeal to the federal government and win, they still need New York State's permission to use the waters of Long Island Sound and the land under the Sound.

We the people of New York State own the land and water on which Shell and TransCanada want to build the Broadwater LNG terminal. New York State, acting on our behalf, has total control over whether it wants to let Broadwater use that water and land.

If Governor David Paterson and the Secretary of State and the staff at the Department of State have determined that Broadwater is not in the best interest of New York, why would they let Broadwater use the Sound and its underwater land, even if the state's decision is reversed on appeal?

New York State's decision, announced yesterday, was based on its authority to oversee activities in the state's coastal zone. The state has that authority because the federal government gave it to the state, through the Coastal Zone Management Act, which is administered by the U.S. Department of Commerce. So if Broadwater wants to overturn New York's decision, the Department of Commerce is the place to go.

Here's how the New York State Department of State describes it:

Unless the U.S. Secretary of Commerce overrides the Department of State (DOS) decision on appeal, pursuant to the CZMA, the decision means that the Federal Energy Regulatory Commission and the U.S. Army Corps of Engineers cannot approve construction of the project in LIS.

The Hartford Courant quoted Connecticut Attorney General Richard Blumenthal:

"They have a right to go to the secretary … and say that national energy priorities should override the coastal zone management determination made here by the governor," Blumenthal said.

Let's take the most cynical point of view. The Federal Energy Regulatory Commission of course has already approved Broadwater's proposal, saying it can go forward if it meets 80 conditions meant to guarantee safety and environmental protection. So let's say the Secretary of Commerce gets Broadwater's appeal and says, essentially, "The people at FERC think this is a worthwhile project and their opinion is good enough for me, so I'm overturning New York State's decision." I don't think that's out of the question at all. (This paragraph is corrected from an earlier version in which I mistakenly asserted that the Secretary of Commerce oversees FERC.)

Broadwater then has to come back to New York and ask for the right to use our land and water (Broadwater also needs permits from the state Department of Environmental Conservation).

Yesterday New York State laid out an articulate and compelling rationale for rejecting Broadwater, based on the following:

1. The Sound is not an industrial park.

2. Broadwater would set a precedent and lead to an unacceptable change in the Sound.

3. Broadwater would occupy public land and water for a private undustrial use.

4. Broadwater would damage the Sound ecologically.

Broadwater can appeal New York State's coastal zone determination, and it can win on appeal. All that would mean is that New York State would have to formally issue a permit for use of the coastal zone. It would not force the state to give away our water and our land for a project that the state thinks is bad for New York.



Anonymous Leah Schmalz said...

Here's the standard for overturning at Secretary of Commerce: If the Secretary finds the activity to be consistent with the objectives of the Coastal Zone Management Act or is otherwise necessary in the interest of national security, the Secretary will override the state’s objection. Only where the activity significantly or substantially furthers the national interests and that interest outweighs the adverse coastal affects of the activity will the state’s objection be overturned.

And keep in mind, Courts give substantial discretion to agency decisions—which means even if the SOC overturns the decision, it takes a heck of a lot to actually have that overturn of a state determination under its own coastal management program actually stick. -- Leah Schmalz, Director of Legislative and Legal Affairs, Save the Sound

10:34 AM  
Anonymous Anonymous said...

For the reasons you gave I think that politically-if not legally- the Legislature and Governor would never be able to approve-as would be required under the Public Trust Doctrine- what the Gov and Secretary of State have already resoundingly disapproved.

But, the interesting issue is if Broadwater changes its approach, offers to lease underwater lands pursuant to customary procedures and to pay what the Office of General Services stipulates for the lease, would that change the situation if the State’s the consistency determination has been over turned? As a matter of law, I don’t know the answer, but as a political/policy matter, I don’t think so. I think Patterson has made his bed and can’t go back now, because of the broad reasons given for the denial. So I think he would try to make sure that the Office of General Services did not accept the lease. But what I’m not really certain of is how much discretionary authority OGS has to deny a lease of underwater lands, once the broad authority of the consistency determination is off the table, due to the presumed approval by the Secretary of Commerce. Also, I’m not entirely certain that the authority of the consistency determination would be “off the table” if the decision to made is by the OGS. This is all very complicated stuff.

Also, is it a viable economic option for Broadwater, given that the leases offered nowadays I believe are not as long term as they once were (30 years or less vs. 99 years) and presumably OGS would be free to really wack them on the rental?

10:35 AM  
Anonymous Leah Schmalz said...

Broadwater needs two separate types of easements from OGS, one for the pipeline and one for the mooring tower. It is the mooring tower easement that is OGS’s clearest cut potential for a denial.

The public trust doctrine has been incorporated into § 75 which permits OGS to grant rights to State-owned lands under navigable water to private parties subject to statutory limitations and restrictions OGS may impose in particular cases. “Any grant must be consistent with the public interest in protecting and preserving the availability of navigable waters for public use and due regard for the legitimate interests of neighboring private property owners.” Such grants may only be made to the upland riparian owner ("proprietor of the adjacent land"), a limitation designed to recognize and protect the riparian right of access to navigable water.; Pub L § 75 (7)(a).

Under § 75(7)(a) the Commissioner may “grant . . . to the owners of the land adjacent to the land underwater specified in this section . . . so much of said land underwater as the commissioner deems necessary for that purpose. No such grant shall be made to any person other than the proprietor of the adjacent land.”

This demonstrates the fundamental flaw of Broadwater’s application. It seeks to construct a facility in the middle of the Long Island Sound to which there is no immediately apparent adjacent land and to which they have no interest that could be analogized, in any way, to a traditional riparian right. To the extent that there may specific adjacent land owned by Broadwater, the nature and scope of the proposed use cannot be said to relate to or grow out of the ownership of that land in any meaningful way.

The strict exclusionary language of § 75(7)(b) was added in 1992. The legislative findings to that Act explain that the purpose of the Act is to “ensure that waterfront owners’ reasonable exercise of riparian rights and access to navigable waters shall be consistent with the public interest in reasonable use and responsible management of waterways and such public lands for the purposes of navigation, commerce, fishing, bathing, recreation, environmental and aesthetic protection and access to the navigable waters and lands underwater of the state.” 1992 NY Laws ch. 791, § 1.

Thus, there are two purposes to Pub. Lands § 75(7)(b): 1) to ensure that the use is reasonably related to the nature of the riparian rights of the adjacent upland property holder and 2) to ensure that such use is consistent with the rights of others to reasonably use such waters for traditional public trust purposes. The executive memorandum on the law identifies these same interests. The purpose, according to the memorandum, is to “Protect the public use of State lands for navigation, commerce, fishing and bathing and to serve the public interest in environmental protection, with due regard for the need for affected owners of private property to safeguard their property.” Executive Memorandum for 1992 NY Laws ch. 791.
The Broadwater project bears no resemblance to what the legislature contemplated when it acted to protect the “reasonable exercise of riparian rights” or the need for “affected owners of private property to safeguard their property.” The proposed facility would industrialize and completely exclude the boating, fishing and commercial public from a huge portion of the Long Island Sound. This is different both in scope and scale from traditional uses such as the cultivation of clam beds, the construction of a dock or the construction of a mooring structure for traditional ships.

The easement Broadwater seeks from OGS is prohibited by the letter and spirit of §§ 75(7)(a) and (b). If Broadwater wants such an easement, it must seek it in the form of a grant from the legislature under its traditional public trust powers.

11:44 AM  
Blogger Nan Patience said...

Thank you for your good work.


8:57 PM  

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