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Appeals Court Rejects Petition Filed by Anti-Weaver's Cove Camp

A federal appeals court in Boston, MA, Tuesday denied a mandamus petition filed by critics of the controversial Weaver's Cove liquefied natural gas (LNG) project that sought to compel the Department of Transportation (DOT) to establish minimum safety standards governing the siting of new LNG terminals, as required by the Pipeline Safety Act of 1979.

The petition, which was filed in September, was a three-pronged effort by Massachusetts Attorney General Tom Reilly, Rhode Island Attorney General Patrick Lynch and Fall River Mayor Edward Lambert (see Daily GPI, Sept. 11).

They asked the U.S. Court of Appeals for the First Circuit to take two actions -- 1) compel the DOT to adopt minimum standards for the siting of LNG facilities (petitioners claimed that LNG safety regulations adopted by DOT in 1980 do not satisfy the 1979 law); and 2) rule on a long-pending petition for a DOT rulemaking that would address the safe siting of LNG import projects. Their "ultimate target," as the court opinion said, was the hotly contested Weaver's Cove proposed LNG import terminal that has been approved for Fall River, MA..

As to the first request, "we agree [with DOT and Weaver's Cove] that the requirements for mandamus are not met," the court said. "Mandamus is regarded as an extraordinary writ reserved for special situations. Among its ordinary preconditions are that the agency or official have acted (or failed to act) in disregard of a clear legal duty and that there be no adequate conventional means for review."

The second request was dismissed as moot, given that the DOT in October denied the petition in which LNG opponents sought a rulemaking addressing the safe siting of LNG terminal facilities. The appellate court in its ruling signaled that the DOT's final decision rejecting petitioners' request for a rulemaking would be a more appropriate vehicle to obtain judicial review, compared to the petition before the court.

"Final agency action, including a final refusal to act, is ordinarily reviewable in a federal court," the court said. "It may be that the DOT's recent denial of petitioners' petition for rulemaking would, after exhaustion of internal remedies, be a possible vehicle for obtaining the judicial review they seek."

The Federal Energy Regulatory Commission approved the Weaver's Cove LNG terminal in July 2005. But congressional, state and local lawmakers are doing everything possible to head off construction of the project.

The $250 million terminal project, when built, would provide 800 MMcf/d of peak sendout capacity, 400 MMcf/d of baseload supply and 200,000 metric tons of LNG storage. The project would take up 68 of 73 acres at a former petroleum import terminal on the Taunton River, which feeds into Mount Hope Bay and Narragansett Bay about 50 miles south of Boston.

Gordon Shearer, CEO of Hess LNG, one of the sponsors of Weaver's Cove, said Tuesday that the project would begin construction in nine to 12 months (see Daily GPI, Nov. 29).

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