Weaver’s Cove Energy, LLC v. Rhode Island Coastal Resources Management Council

In 2005, the Federal Energy Regulatory Commission (the commission) approved, subject to a few conditions, Weaver’s Cove Energy, LLC’s (plaintiff) application to build a liquified natural gas terminal. Among the conditions was that the Rhode Island Coastal Resources Management Council (the council) (defendant) review the project to ensure that the project was consistent with the state’s coastal management plan. The council’s review was mandated by the Federal Coastal Zone Management Act of 1972 (the act). Another condition was that Weaver obtain any licenses required by the state. The state plan required Weaver to obtain a Category B Assent permit because the construction involved dredging activities. After Weaver submitted to the council its application for a certificate of consistency and for its permit, the council notified Weaver that the applications were incomplete pursuant to § 300.9(c) of the state plan, which required a letter of acceptance from an approved upland site for the disposal of dredged materials. In response, Weaver claimed that § 300.9(c) did not require a letter of acceptance from an approved upland site because dredged material was to be disposed of in Massachusetts rather than Rhode Island. The matter was never resolved, and the state did not issue any decisions regarding the applications. One year after Weaver submitted its applications, Weaver sought a declaration from multiple federal agencies that the state’s concurrence was presumed because the state exceeded its six-month review period authorized by the act. The agencies refused to accept jurisdiction. Weaver filed an action in federal district court seeking a declaration that the council’s concurrence was presumed, and that the Category B Assent permit requirement was preempted by federal law. The council argued that the six-month period was tolled. The district court granted summary judgment in Weaver’s favor. The matter was appealed.