The Rhode Island Attorney General’s Office recently determined that the Rhode Island Coastal Resources Management Council (CRMC) improperly denied the APRA (Access to Public Records Request) of Providence Attorney Seth Handy. Handy had asked the CRMC for “all records related related to any conversation or communication between the [CRMC] and the National Oceanic and Atmospheric Administration (NOAA) or the Federal Energy Regulatory Commission (FERC) regarding or related to federal preemption of any CRMC regulatory standards that would otherwise apply to the consistency request” regarding National Grid‘s proposed LNG facility planned for Field’s Point in the Port of Providence.
Here’s all the documentation concerning Handy’s APRA request.
The requested documents were released to Handy on September 4. According to Handy, in his filing with FERC, “The communications produced indicate that David Kaiser of NOAA had informed CRMC that FERC had exclusive authority over the siting of the proposed LNG facility, but not with regard to any analysis of coastal effects, concluding that “[i]t looks like most of what you are addressing relates to coastal effects and not attempts to address siting issues…”
Handy’s APRA request noted that “during hearings on this matter CRMC staff concluded that many of the standards that applied in a consistency review, including many that National Grid had addressed in its application, could not be considered due to federal preemption.”
Here’s CRMC Executive Director Grover Fugate addressing those attending a public hearing on the issue on November 17, 2017.
“This applicaton, because of the pre-emption aspects through FERC’s siting provisions, pre-empts state law on many, many issues. The Council has what’s called federal consistency authority but this is a very narrow review on the basis of our consistency authority. It is limited to the coastal effects and only the coastal effects we have enforceable policies for. Many aspects, under our typical regulations, have been pre-empted through the FERC process, such as the siting of this facility… This is a very narrow review.
“We’ve had extensive discussions with NOAA, over months now, literally, on this project as to what we can and can’t say. NOAA has reviewed our reports and has indicated from their review that we have confined our comments to the coastal effects.
“We are very cognizant of the regulations: what we were allowed to say and not say as a result of conversations with NOAA… We wanted to make sure that we had everything covered, so that we would not jeopardize our appeal.”
The CRMC approved National Grid’s project, over the objections of community members and the environmental group No LNG in PVD in highly contentious hearings. In fact, the makeup of the CRMC’s membership appears to have been modified by Governor Gina Raimondo to ensure such an outcome.
It was said during the hearings that discussions between Fugate and NOAA were all by phone and that there was no written documentation demonstrating what issues were to be considered under CRMC authority and what issues were under FERC. Handy’s APRA request showed that this wasn’t quite true.
Starting on page 14 of this PDF are the emails between CRMC and NOAA.
James Boyd, Coastal Policy Analyst for the CRMC writes to David Kaiser of NOAA:
Grover [Fugate] requested that I email you both a copy of the CRMC staff report for the proposed National grid LNG liquefaction facility project to be constructed at Field’s Point in Providence along the Providence River. Although the project is within our 1st tier of jurisdiction )within 200 feet of a coastal feature) the CRMC is not issuing a permit in this matter; rather it iis being reviewed under our federal consistency authority pursuant to the CZMA and 15 CFR Part 930 Subpart C, as the applicant has filed an application with FERC pursuant to the Natural Gas Act.
The liquefaction project is generating lots of opposition here in the state and Grover wanted to give you a heads up on the staff report should anyone contact you regarding the projct. the Council has scheduled public hearings in this matter for November 14 and 28. Additional information on the project is available on the CRMC home page here: http:/wwwcrmcri.gov/
A couple of quick observations. In the document, it states that CRMC and the applicant have mutually agreed to “waive” the CZMA six-month review period. I do not know what that means. A state and applicant can only agree to “stay’ the review period and that stay needs to be very clear in writing regarding dates: date [the] CZMA review period started; date the stay started; date the stay ends; the number of days left in the six-month review period after stay ends; and date the state’s decision is due. Without this understanding, any other agreement may not be valid. Let’s discuss if this is not clear. Please se page 14 of the Federal Consistency Overview. http://www.coast.noaa.gov/czm/consistency/media/federal-consistency-overview.pdf
A second observation is that, because of federal preemption, any CRMC condition of concurrence (or objection) should not stray into FERC’s exclusive authority for siting of the facility. It looks like most of what you are addressing relates to coastal effects and not attempts to address siting issues, but the variance could be an issue.
Thanks David. The second observation you made would be very helpful to bring this out at the hearing. We are being pressed as to why this location. Is that OK? Or would you prefer a separate email on that.
Echoes of the email conversation above can be heard in Fugate’s address to the people attending the public hearing.
In response to this new information from CRMC, information the CRMC did their best to prevent from being released, Attorney Handy writes, in his filing with FERC, that the consistency determination made by the CRMC should be reversed:
I question how opportunity has been afforded to all parties to respond and present evidence and argument on all issues involved under Rhode Island’s Administrative Procedures Act, if the Council relies on staff conversations or interactions with federal agencies regarding legal standards typically applied to consistency requests without providing the substance of those conversations to the parties and the public. R.I. Gen. Laws §42-35-9(c).
As indicated in the public comment I filed on November 7, 2017 (attached as Exh D), many of the standards erroneously claimed to be preempted were clearly at issue in this proceeding regarding the consistency determination. The claim of preemption effectively interfered with the public’s rights under Rhode Island’s Administrative Procedures Act. The consistency determination should be reversed for that reason. (Emphasis mine)
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