New York’s Objection to the Broadwater Energy LNG Project Upheld

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SandBar 8:2, July, 2009 Recommended citation: Sims, Misty A. , Michigan Court Rejects Judicial Review of Agency , 8:2 SandBar 13 (2009). New York’s Objection to the Broadwater Energy LNG Project Upheld U.S. Dept. of Commerce, Decision and Findings by the U.S. Secretary of Commerce in the Consistency Appeal of Broadwater Energy LLC and Broadwater Pipeline LLC from an objection by the State of New York (April 13, 2009). *Misty A. Sims, JD, LL.M, University of Denver Sturm College of Law* Broadwater Energy LLC and Broadwater Pipeline LLC (collectively, Broadwater) sought authorization from the Federal Energy Regulatory Commission (FERC) to construct and operate liquefied natural gas (LNG) facility in Long Island Sound.1 Because the project would be located in New York state waters, New York reviewed the project to determine whether it could be consistent with New York’s coastal management, pursuant to authority granted by the federal Coastal Zone Management Act (CZMA). New York objected to the project after finding it was inconsistent with enforceable policies of the state’s Long Island Sound Coastal Management Program. Broadwater appealed New York’s objection. Broadwater claimed New York’s objection was defective because (1) certain coastal effects identified by the state related to a separate federal agency activity and thus cannot serve as a basis for the state’s objection; and (2) it was based on materials that are not enforceable policies of the state’s coastal management program. However, the Secretary ruled: (1) New York’s objection considered all coastal effects resulting from the project; and (2) New York’s objection is based on the enforceable policies of its federally approved coastal management program. Secretary’s Findings The CZMA provides that states have the authority to review federal projects to determine whether activities are consistent with their coastal management program. If a state objects, the federal agency may not issue the permit. A project opponent may appeal a state’s negative consistency finding to the Secretary of Commerce. The Secretary may only override a state’s objection if the project is (1) consistent with the objectives of the CZMA or (2) necessary in the interest of national security. An activity is consistent with the policies set forth in the CZMA if all of the following three elements are met: (1) the activities further the national interest in a significant or substantial manner; (2) that national interest outweighs the adverse coastal effects; and (3) there is no reasonable alternative available consistent with the state’s coastal management program. The U.S. Secretary of Commerce (Secretary) concluded that the LNG project would further the national interest in a significant and substantial manner because it is a major coastal-dependent energy facility; would develop the resources of the coastal zone; would protect and preserve the resources of the coastal zone. Nonetheless, the Secretary found that the national interest furthered by the LNG facility did not outweigh the adverse coastal effects it would cause. The Secretary considered the following direct and indirect adverse coastal effects on, among other things, the commercial fishing industry and endangered species. Upon balancing the national interest of the Project against the adverse coastal effects, both separately and collectively, the Secretary held the national interest did not outweigh its adverse coastal effects. The Secretary found the most significant adverse coastal effect to be the loss of scenic and aesthetic enjoyment due to the Project. The second ground for overriding New York’s objection to the proposed Project is a finding that the activity is “necessary in the interest of national security.”2 Broadwater relegated its national security argument to a footnote in its notice of appeal. Furthermore, comments solicited from the Department of Defense and other federal agencies did not raise any national security concerns that would occur if the project did not go forward. Based on Broadwater’s failure to assert the project was necessary in the interest of national security and the federal agency statements, the Secretary found the project was not necessary in the interest of national security. l Conclusion Broadwater failed to establish that its project is consistent with the objectives of the CZMA. Although national interest is furthered in a significant and substantial manner, that national interest does not outweigh the Project’s adverse coastal effects. In addition, the Secretary found the Project was not necessary in the interest of national security. Thus, New York’s objection to the Project proposed by Broadwater was sustained. Endnotes 1. Decision and Findings by the U.S. Secretary of Commerce in the Consistency Appeal of Broadwater Energy LLC and Broadwater Pipeline LLC from an objection by the State of New York, April 13, 2009. Available at: http://www.ogc.doc. gov/czma.nsf/49320ADEF708E3EF85257597005EFA67/$File/Broadwater_ Decision_04-13-2009.pdf?OpenElement . 2. Id. at 36.
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SandBar 8:2, July, 2009
Recommended citation: Sims, Misty A. , Michigan Court Rejects Judicial Review of Agency , 8:2 SandBar 13 (2009).

U.S. Dept. of Commerce, Decision and Findings by the U.S. Secretary of Commerce in the Consistency Appeal of Broadwater Energy LLC and Broadwater Pipeline LLC from an objection by the State of New York (April 13, 2009).

Misty A. Sims, JD, LL.M, University of Denver Sturm College of Law

Broadwater Energy LLC and Broadwater Pipeline LLC (collectively, Broadwater) sought authorization from the Federal Energy Regulatory Commission (FERC) to construct and operate liquefied natural gas (LNG) facility in Long Island Sound.1 Because the project would be located in New York state waters, New York reviewed the project to determine whether it could be consistent with New York’s coastal management, pursuant to authority granted by the federal Coastal Zone Management Act (CZMA). New York objected to the project after finding it was inconsistent with enforceable policies of the state’s Long Island Sound Coastal Management Program.
Broadwater appealed New York’s objection. Broadwater claimed New York’s objection was defective because (1) certain coastal effects identified by the state related to a separate federal agency activity and thus cannot serve as a basis for the state’s objection; and (2) it was based on materials that are not enforceable policies of the state’s coastal management program. However, the Secretary ruled: (1) New York’s objection considered all coastal effects resulting from the project; and (2) New York’s objection is based on the enforceable policies of its federally approved coastal management program.

Secretary’s Findings
The CZMA provides that states have the authority to review federal projects to determine whether activities are consistent with their coastal management program. If a state objects, the federal agency may not issue the permit. A project opponent may appeal a state’s negative consistency finding to the Secretary of Commerce. The Secretary may only override a state’s objection if the project is (1) consistent with the objectives of the CZMA or (2) necessary in the interest of national security.
      An activity is consistent with the policies set forth in the CZMA if all of the following three elements are met: (1) the activities further the national interest in a significant or substantial manner; (2) that national interest outweighs the adverse coastal effects; and (3) there is no reasonable alternative available consistent with the state’s coastal management program.
      The U.S. Secretary of Commerce (Secretary) concluded that the LNG project would further the national interest in a significant and substantial manner because it is a major coastal-dependent energy facility; would develop the resources of the coastal zone; would protect and preserve the resources of the coastal zone. Nonetheless, the Secretary found that the national interest furthered by the LNG facility did not outweigh the adverse coastal effects it would cause. The Secretary considered the following direct and indirect adverse coastal effects on, among other things, the commercial fishing industry and endangered species.
      Upon balancing the national interest of the Project against the adverse coastal effects, both separately and collectively, the Secretary held the national interest did not outweigh its adverse coastal effects. The Secretary found the most significant adverse coastal effect to be the loss of scenic and aesthetic enjoyment due to the Project.
      The second ground for overriding New York’s objection to the proposed Project is a finding that the activity is “necessary in the interest of national security.”2 Broadwater relegated its national security argument to a footnote in its notice of appeal. Furthermore, comments solicited from the Department of Defense and other federal agencies did not raise any national security concerns that would occur if the project did not go forward. Based on Broadwater’s failure to assert the project was necessary in the interest of national security and the federal agency statements, the Secretary found the project was not necessary in the interest of national security.
l
Conclusion
Broadwater failed to establish that its project is consistent with the objectives of the CZMA. Although national interest is furthered in a significant and substantial manner, that national interest does not outweigh the Project’s adverse coastal effects. In addition, the Secretary found the Project was not necessary in the interest of national security. Thus, New York’s objection to the Project proposed by Broadwater was sustained.

Endnotes
1. Decision and Findings by the U.S. Secretary of Commerce in the Consistency Appeal of Broadwater Energy LLC and Broadwater Pipeline LLC from an objection by the State of New York, April 13, 2009. Available at: http://www.ogc.doc. gov/czma.nsf/49320ADEF708E3EF85257597005EFA67/$File/Broadwater_ Decision_04-13-2009.pdf?OpenElement .
2. Id. at 36.