Broadwater – the musical

If you're interested in the fate of the Broadwater proposal — and if you're interested enough to be reading your community newspaper, you've got to be interested in the fate of Shell Oil's plan to moor a gargantuan natural gas storage facility nine miles off our coast — a recent federal court decision in an unrelated case is worth looking at.

A proposal to build a cross-Sound natural gas pipeline called Islander East, connecting Long Island to a New England natural gas transmission system, has been kicking around for several years. The subsea pipeline would connect an Algonquin pipeline at North Haven, Conn., with KeySpan's transmission system at Shoreham. Last week, a federal district court judge in Connecticut dealt the plan what many are calling a fatal blow.

The court overruled a decision by the U.S. secretary of commerce, who had essentially overruled the Connecticut secretary of state, who was trying to effectively overrule the Federal Energy Regulatory Commission.

Come again?

This stuff is so dense it's almost impossible to wade through and make sense of. It takes lots of time, patience and an almost psychotic obsession — which makes me uniquely qualified for the job.

The fate of Broadwater — like the fate of the Islander East Pipeline — will turn on the interpretation and application of a federal law called the Coastal Zone Management Act.

The CZMA is a 35-year-old statute enacted to encourage coastal states to develop comprehensive coastal resource management programs that balance competing uses of and impacts to coastal resources.

When a coastal state joins the national coastal management program and adopts a coastal zone management plan that's approved by the federal coastal zone management agency, the CZMA gives the state the ultimate decision-making authority over its coastal zone. In other words, the state's decisions will trump decisions made by federal agencies concerning management of the coastal zone resources.

Activities that affect coastal resources must be consistent with the state's adopted coastal management plan, even when the activities are pursuant to federal licenses or permits or undertaken using federal funds. Under the CZMA, the state can stop a federally permitted activity if the state determines the activity is inconsistent with its coastal zone management plan. The state determination trumps the federal agency ruling, turning the usual pecking order upside down.

But wait, there is a loophole — and one big enough to pilot a 900-foot-long oceangoing LNG tanker through: an appeal to the U.S. secretary of commerce.

If a state with an approved coastal zone management plan (like New York) raises a consistency objection, arguing that a proposed activity (like Broadwater) for which a federal permit has been approved (like the one FERC is now considering) is not consistent with the state's coastal zone management plan, the applicant (Broadwater) can file an appeal with the U.S. secretary of commerce, asking the secretary of commerce to override the state's objection. The applicant must show that the activity is consistent with the objectives of the CZMA and/or is otherwise necessary in the interest of national security.

OK, make that loophole big enough for two 900-foot-long oceangoing LNG tankers side by side, including their Coast Guard-mandated floating security zones.

All of this must be examined in the context of current global politics and the policies of the Bush administration. We have a national energy policy that favors development of natural gas facilities as a "clean" alternative to oil. We have a federal agency (FERC) whose very mission is to assist energy companies with the development of new gas (and oil) production, storage and transmission facilities. We have a president who has pronounced natural gas to be a preferred way to reduce our dependence on "foreign oil" — which is, in turn, like the development of oil fields in the Gulf of Mexico and the Arctic National Wildlife Refuge, important to "national security." So would it be reasonable to expect the (Bush-appointed) U.S. secretary of commerce to do anything but override a state's CZMA consistency objection in the interest of national security? Heck, no.

Ah, but God bless America with its system of constitutional law and built-in checks and balances. The secretary of commerce's decision is reviewable on appeal by a federal court. That's good news. But there is, of course, bad news — and that's the standard of review. Like all judicial review of administrative decisions, the standard is a really tough one to meet: the appellant (the state) must establish that the administrative decision was "arbitrary and capricious" without any "reasonable basis" in the record.

Fortunately for the state of Connecticut, which has been battling the Islander East Pipeline for years, the commerce secretary's decision wasn't supported by facts in the record on appeal, and the federal judge found the secretary's decision "arbitrary and capricious."

What does the Islander East case mean for Broadwater? Not much, according to Broadwater, which says New York needs gas from both Islander East and Broadwater.

Vindication and hope, according to Broadwater opponents, who are heartened by a federal court's willingness to take a hard look at the feds' approval of an energy project over a state's CZMA consistency objections.

An interesting aside: The judge, Stefan Underhill, was appointed to the federal bench in 1999 by the Clinton administration, nominated by Democratic senators Dodd and Lieberman. A Rhodes scholar and Yale Law School graduate, he was on the board of directors of Connecticut Legal Services and, according to a press release announcing the appointment, he "has a special interest in his community's underprivileged populations and youth." Not exactly the kind of guy who'll mete out cowboy justice for the Bush gas and oil crowd.

If we're to take away a lesson from Islander East, maybe it's this: We should scrutinize the members of the federal bench for the eastern district of New York sitting in the Alfonse M. D'Amato federal courthouse in Islip. Their backgrounds, scholarship and prior decisions might prove to be the best predictor of whether Broadwater's natural gas storage facility is eventually moored in the middle of the Sound.

Copyright 2007 Times/Review Newspapers Corp.