Islander East Pipeline Co., LLC v. McCarthy

sеeking compel arbitra- far from tion, requested that the Inter- had Wabtec Court dis- of Commerce

national Chamber Faiveley’s request for arbitration

miss Faiveley’s were not claims ground by any agreement arbitration be-

covered Faiveley Reply Ex. parties.

tween

A. circumstances, Wabtec’s

Under these cannot be construed as a

motion dismiss arbitration, the denial of compel

motion pursuant to 9 U.S.C. appealable

which 16(a)(1)(C).

CONCLUSION reasons, appellee’s the foregoing

For appeal and the is GRANTED

cross-motion jurisdiction. for lack of

is Dismissed EAST PIPELINE

ISLANDER

COMPANY, LLC,

Petitioner,

v. McCARTHY, Commissioner

Gina Department of Environ

Connecticut Protection,

mental Con State Department

necticut Environmen Protection, Respondents.

tal 06-5764-ag.

Docket No. Appeals, Court of

United States Circuit.

Second

Argued: April 2,May

Decided: Massicotte,

Kimberly P. Assistant Attor- (Richard ney Blumenthal, General M. At- torney General for the State of Connecti- cut; Looney, Wrinn, John M. David H. Koschwitz, O’Connell, Scott N. George W. General, Attorneys brief), Assistant on the Attorney General, Hartford, Office of the CT, Respondents. for RAGGI, Before: KEARSE and Circuit RESTANI, Judges, and Judge.1 Judge RESTANI in a separate dissents opinion. RAGGI,

REENA Judge: Circuit This case arises from ongoing efforts (“Is- Co., of Islander East Pipeline LLC East”) lander secure water certification from Depart- the Connecticut ment of Environmental Protection (“CTDEP”) plan for a to build a natural gas pipeline from Connecticut to New York Long across Island Sound. Such certification prerequisite is a to Islander securing East final federal approval for its pipeline project under the Natural Gas Act (“NGA”), 75-688, of 1938 Pub.L. No. (codified Stat. 831 as amended at 15 U.S.C. 717-717w). §§ 19(d), § Pursuant to NGA 717r(d), 15 U.S.C. Islander peti- East tions this court for review of the CTDEP’s December certification, 2006 denial of which Islander challenges East as arbi- (Beth Frederick Webb, M. Lowther L. trary see capricious, CTDEP, Water Robins, brief), Janet M. on the Dickstein Quality Certification Application No. Shapiro LLP, Washington, D.C.; Anthony 200300937-SJ, Co., Pipeline Islander East (Dec. M. Fitzgerald, Carmody Torrance, LLP, 2006) (“2006 & Denial”). LLC The Haven, CT; Stanton, New Thomas L. argument As- is familiar to In a published us. Counsel, sociate Spectra General Energy opinion filed October a majority of LLC, Islander Pipeline Company, East panel vacated the CTDEP’s initial Operator for Pipeline Com- February 2004 denial of certification to LLC, Waltham, MA, pany, for Petitioner. Islander East as capricious Restani, Trade, 1. The Honorable Jane A. Judge Chief sitting by designation. of the United States Court of International further The Natural Act review Gas and remanded application. See The Natural Gas Act of 1938 compre Dep’t v. Conn. Envtl. Pipeline Eаst Co. hensively regulates transportation (2d (“Islander ”), I F.3d 79 Prot. gas sale of natural in interstate commerce. Cir.2006). 7, any § id. at 84. to NGA See Pursuant construct, extend, party seeking to ac completed that The CTDEP has now facility a for quire, operate the trans denying in certifica- persists review gas portation or sale of natural in inter might legiti- Whatever reservations tion. “a state commerce must secure certificate decision, mately be voiced as this latest public necessity” convenience and J., (Restani, dissenting at 164-70 see infra Energy Regulatory the Federal Commis judicial review of the CTDEP’s part), in ’ (“FERC”). sion 15 U.S.C. grounds is limited to the set forth denial 717f(c)(1)(A).2 Further, § the FERC must Administrative Procedure Act that the proposed project complies ensure (“APA”), 706(2)(A), § specifically 5 U.S.C. requirements law, with federal in all that we to “hold unlaw- provides are which to, cluding, but limited those estab action, findings, ful and set aside Act, by lished the Clean Water 33 U.S.C. ... arbitrary, conclusions found to be 1251-1387, §§ and the Coastal Zone Man discretion, or an abuse of other- capricious, Act, agement §§ 16 U.S.C. 1451-65. See accordance with law.” Because wise I, (citing East Islander 482 F.3d 84 supports its second denial the CTDEP Co., Pipeline East 102 Islander F.E.R.C. explanations reasoned tied record ¶ (2003)). 61054,p. 61130 evidence, longer court can no dismiss this its conclusions as unlawful under APA. generally While the NGA local preempts Accordingly, deny East’s peti- Islander permit licensing requirements, see id. tion for review. Co., (citing Pipeline Islander East ¶ 61054, 61130); p.

F.E.R.C. National Background Supply Corp. Fuel v. Gas Pub. Serv. (2d Comm’n, 571, 576-79 894 F.2d Cm. The Regulatory A. Scheme 1990), the Clean Water and Coastal Zone Although familiarity effecting Acts notable in Management we assume readers’ are I, prior partnership a federal-state opinion with our Islander East ensure management quality F.3d our discussion of the relevant and coastal around country, ap as as our of the so that state standards facts well assessment government are the federal petition proved merits of Islander East’s facili- become by a of the standard for state. See preliminary tated review rele- federal (ex- I, East F.3d 90 n. 9 regulatory vant scheme. Islander 19, 2002, Long September line Island By dated route "had a shorter order leases, crossing, pro- shellfish FERC concluded that East's Sound avoided more required public quality posed and would have air and noise was con- (citing impacts necessity pro- onshore in Connecticut.” Id. venience because it would FERC, Project, public Pipeline a FEIS significant vide the benefit of second Nevertheless, (2002)). gas Long the FEIS Island concluded source natural for that, acceptable employed meas- environmentally if Islander East certain manner. See Is- along mitigate impacts In a lander 482 F.3d at 86. Final ures to environmental route, (“FEIS”) plans Impact its Environmental Statement order, environmentally acceptable. prepared preliminary to would also be FERC preferable pipe- alternative See id. had identified Act, 131.12). Thus, § under Clean Water plaining quality state’s water approved by identify standard quality state water standards must and des- Agency uses, ignated recreation, federal Environmental Protection such as drinking, (“EPA”) quality support, cultivation, ‘the water stan- wildlife “becomes shellfish “ applicable for the waters of that and must quality dard establish ‘water criteria ” ” 1313(c)(3))). § (quoting upon 33 U.S.C. for such waters State’ based such uses.’ scheme, Consistent with this the two Acts Id. at (quoting S.Ct. 1900 1313(c)(2)(A)). require applicants permits Further, for federal to U.S.C. pursu- provide licensing agencies federal ant such to the Clean Water “antidegra- Act’s policy,” the FERC with certifications from affected dation state’s water confirming compliance states with local standards must “be sufficient to maintain id. at nn. (citing existing navigable standards. See 84 & 3-4 beneficial uses of wa- 1456(c)(3)(A); ters, § preventing degrada- 16 U.S.C. 33 U.S.C. their further 1341(a)(1)). 705, § tion.” Id. at 114 1900 (citing S.Ct. 33 1313(d)(4)(B)). § U.S.C. The mandate’s dispute East’s with the Islander broad reach is reflected 40 C.F.R. rеgarding compliance its with the state’s 131.12(a)(2), § provides which that states management plan coastal zone is the sub- “shall quality adequate assure water to ject appeal pending of different in this protect existing fully.” Thus, uses no ac- court, See State Connecticut v. United of “ tivity that ‘partially or completely Commerce, Dep’t States Nos. 07-4522- ” any existing eliminate permitted, use’ is 07-4593-cv(CON).3 cv(L), Accordingly, on if even it would leave majority of a petition, this consider given body of water undisturbed. PUD challenge to the CTDEP’s denial of No. 1 Cty. Washington v. of Jefferson quality the water certification being Dep’t Ecology, 718-19, 511 U.S. at 114 Act, mandated the Clean Water is a EPA, (quoting Questions S.Ct. 1900 and prerequisite to the granting FERC final Answers on Antidegradation at (Aug. 3 approval to commence construction of the 1985)).4 pipeline. protect against To 2. The Clean Water Act degradation, may employ states quan both The Clean Water Act specifically pro- open-ended titative and standards. See id. “existing” “designated” 715-17, tects 1900; uses of at 114 S.Ct. see also 40 navigable waters. PUD 1 § No. C.F.R. (providing 131.11 for states to of Jeffer- Cty. son v. Washington Dep’t criteria). Ecology, establish numerical and narrative 700, 704-05, 511 U.S. 114 Open-ended S.Ct. 128 standards serve to ensure (1994) L.Ed.2d 716 (citing against 33 U.S.C. under-inclusiveness in circum 1313(c)(2)(A) (d)(4)(B); & 40 C.F.R. stances it may impossible where be 23, 2008, January 3. On panel provision any different that disallowed "further water appeal court dismissed the for lack of quality degradation which would interfere subject jurisdiction. matter Appellants filed a injurious with or existing become instream petition rehearing April for Quality Regulation, uses.” Water Standards 51,400, 51,402 (Nov. 8, 1983). Fed.Reg. 4. Because the CTDEP does not contend that change The EPA made this "because the any impact quality, adverse on water however 'injurious' subject terms 'interfere' and were temporary, trivial or would constitute the misinterpretation precluding any activity as use, existing elimination of an we need not might momentarily pollutants which even add possibility petition. consider that on this We 51,402-03. to the Id. water.” at note, however, EPA, revising that the anti-degradation policy in deleted a fill generalized quantitative dredged stan- materials formulate unless Com- to all See PUD No. missioner that all applicable .desig- dard cases. finds Cty. Washington Dep’t v. nated uses quali- as defined these water Jefferson 716-18, ty Id., protected fully.” at Ecology, 511 U.S. S.Ct. standards will (Surface standards, E-l; open-ended App. at 1 applying 1900. In see also id. Water 2). however, Quality expected a state translate Std. No. “specific criteria limita-

its narrative into The coastal this peti- waters issue in Id. at projects.” tions for individual tion are denominated Connecticut as S.Ct. either “SA” or SA waters are “SB/SA.” fish, designated for “habitat for marine Quality 3. Connecticut’s Water Stan- wildlife; other aquatic life and shellfish Pursuant to the Clean Water dards harvesting consumption; direct human Act recreation; supply; industrial water Two water quality narrative standards (Coastal navigation.” Id. Waters figure Connecti- prominently this case. Criteria). Classifications SB waters Quality cut No. Surface Water Standard designated fish, are for “habitat for marine amended, states: wildlife; aquatic other life and commercial goal It main- is the to restore or State’s harvesting; recreation; shellfish industrial chemical, tain physical, biologi- supply; navigation.” water Id. While of integrity cal surface waters. Where waters in the intermediate classifi- SB/SA attainable, the level of water may currently cation one support or provides protection propa- for the designated waters, more of the uses for SA fish, shellfish, gation of and wildlife and e.g., harvesting “shellfish for direct human in recreation and on the shall be water consumption,” state’s such goal for wa- achieved. ters is the “achievement of SA Crite- Class Prot., Dep’t of Envtl. Connecticut Water designated ria and attainment of Class SA (effective 17, 2002), at 1 Dec. Quality Stds. Indeed, uses.” Id. SA classification is a http://www.ct.gov/dep/lib/dep/water/water_ default in classification for marine waters quality_standardsl/wqs.pdf. Thus, Connecticut. id. at 7. to the See extent of impact proposed Quality Surface

Connecticut Water harvesting shellfish is at on this issue Standard No. states: petition, we note that all waters in marine Existing designated uses such as designated Connecticut to be for appear shellfish, fish, propagation and wild- harvesting state shellfish unless the has life, recreation, public supply, specifically qual- ‍‌‌​‌​​​‌​​‌​‌​​‌​​‌‌​​​​​​​​‌​​‌​‌‌​‌​​‌‌​‌‌‌‌​‌‍established a lesser water agriculture, naviga- industrial use and ity in a given classification area. See id. at tion, necessary and the water for then- 7,15.5 protection to be maintained and [are] protected. Pipeline B. The Proposed Id. Connecti- Pipeline The Route from standards, to Pursuant these York cut to New any

CTDEP “Commissioner shall issue filed an permit any regulated certificate dis- On June Islander East 7(c) dredging activity application with the charge, discharge under NGA production goal ranked This consistent with Connecticut’s state first in significant production role the nation’s production of hard second in clams and oysters consump- states). hard clams and for human oysters among Coast East (reporting tion. 2006 Denial at 23-24 public Methodology”); certificate of conven- lation for a see also 2006 Denial FERC construct, own, necessity App. and at 30 & B. The tunnel would start ience and inland, gas pipeline natural between some 700 feet where the drill would operate a York. depth and New See Islander burrow to a of 110 feet Connecticut below sea ¶ Co., p. Application, F.E.R.C. level. See Permit Pipeline East Attachment (2001). proposed pro- Islander East to C. The drill would then level off and 2,000 feet, pipe- 44.8 miles 24-inch-wide ceed south for about after which construct diagonally with an it would drill upwards an interconnection exist- until it line from Haven, emerged near North Connecti- from the Sound’s ing pipeline seabed around Brookhaven, cut, New York. A further 10.9. milepost See id. pipeline would be constructed 5.6 miles of Once the horizontal directional drill anticipated mainline

from Islander bored a “pilot small-diameter hole” the River, York, Wading power New to a near length tunnel, of the pro- Calverton, New plant York. Id. The posed enlarge aby process hole court this focuses on the petition before “reaming.” called See Permit Application, 22.6-mile section would Installation Methodology at 9-10. To ef- Sound. Long cross Island See Islander enlargement, fect string” “drill ¶ Co., p. F.E.R.C. Pipeline East through would first be driven the pilot hole (2002). There, point. to the offshore exit workers a barge on board would attach a reaming Techniques 2. The Construction Rele- would, turn, string, tool to the which Challenged vant to the Denial pulled through back the tunnel toward the employ drilling rig way, three on shore. On its techniques in building reaming construction the tool would cut and soil until rock offshore section the enlarged the tunnel was to a diameter of —horizon- drilling, tal dredging, directional and 36 inches. See id. at At point, a the plowing mile-long segment pipe concludes would pulled —which adversely affect hole, would and into place near the exit pulled then designated uses of state’s coastal wa- through back the tunnel toward the drill- ters, they particularly pertain to ing rig, thereby shell- installing that under- harvesting. briefly fish We ground segment describe of pipeline. See id. at and techniques these some of the con- respect cerns identified with to each. fluid,” “Drilling a composed substance percent fresh water and percent ben- a. Horizontal Directional Drilling clay, continuously tonite would be pumped pipeline running To install a from a nat- into the throughout borehole the drilling ural gas connection site on land in process. Council, Con- See Siting Conn. Find- Sound, Long Facts, necticut into Island Islander ing Dkt. No. 221 at (Aug. proposed employ 2002); East to a horizontal di- Applicаtion, Permit Installation 4,200-foot rectional a drill to create Methodology tunnel at 7. This fluid would travel Branford, underneath surface, nearshore waters off equipment from on through Connecticut. See Islander East Pipeline the inside of the pipe, drill out the end of Project, Application Permit for: pipe, 401 Water along and back to the surface (“Permit Quality Certificate Application”), space between the drill pipe the interi- A, App. Pipeline Maritime Installation or wall of the tunnel. The circulation of (Mar. 2003) (“Instal- Methodology 1at drilling hydraulic fluid would supply both sediment, transport removed power response to the drill bit soil to sedimen- the drill tation cuttings and rock from bit to the concerns6 identified the CTDEP Application, about that process, surface. See Permit Installa- Islander East modified 7, 9. Methodology proposal provide tion Islander East to for most of the filter, materials, proposed recycle dredged “spoil,” to recapture, placed to be most, all, drilling barges but fluid. for open disposal. See id. id. at 7. at 6-10. Based on East’s esti- Islander East would then refill mates, the FERC concluded when trench and exit with an pit “engineered 10.9, at milepost composed drill the seabed backfill” exited of small non-native approximately drilling 455 barrels of fluid rocks and sand. This backfill would be necessarily deposited would be released from the into the trench with a “tremie floor, tube,” covering borehole onto an a specialized the sea funnel designed to approximately area 444 feet in directly diameter to channel the backfill into the depth a of 5 millimeters. See FEIS 3-53. trench. See 2006 Denial 36-37 (citing Inc., release, Haley Aldrich, planned addition to this & Report on Engi- 2003)). that drilling (May 21, CTDEP identified a risk fluid neered Backfill Study escape could waters through into Sound bedrock, Plowing c.

geologic in the un- fissures planned a release called “frac-out.” See complete To pipeline installation in wa- 3-54). (citing 2006 Denial at 60 FEIS beyond ters milepost proposed to continue excavation of the 5-

b. Dredging Backfilling foot-deep a using plow, trench subsea sup- pipeline plemented To install the next section of with hand-excavation divers 35; milepost milepost 10.9 to an area certain id. at areas. See Permit Application, shallow 13 and 20 Methodology waters between feet Installation at 1. deep, Islander to dredge Plowing require barge pass to (1) v-shaped over trench 5 feet into the seabed. route three times: (2) lay See 2006 Denial at To accommo- pipe, pull “post-lay plow,” 32-33. (3) date the pipeline’s pull plow.” transition from tunnel a “backfill See Per- trench, mit dredge Application, Islander East would also Methodology Installation 1, milepost at at pit ap- step, acre-sized exit 10.9 5-6. At the first crew on the proximately deep, wide, barge pieces 18 feet 130 feet pipe together would weld 3-53; and 301 feet set long. length See FEIS onto the sea As each floor. laid, Denial at pit pipe barge 32. To create this exit was and so the would move trench, ap- approximately forty Islander East would remove ahead feet where the 24,000 proximately yards welding cubic of sediment and laying process begin would approximately from acres of anew. At 5.5 seabed. See id. at 2-3. the second step, Pipeline Project, See barge pass Islander East Off- a would another make over area, shore Dredge Disposal Permit each a post-lay Amendment this time lower 2003). 29, 2 (July at Although plow over pipeline Islander the had been laid East originally proposed plow after on the sea hydrau- instal- floor. This would trench, lation of lically the into the close to the encapsulate pipe, at would dredged point backfill the areas with which barge the the would move for- (discussing 6. Sedimentation is the term used to See at 158-61 CTDEP's describe sedi- infra process suspended where loose sediment case). mentation concerns in in the water column settles onto the sea floor. a ward, excavating trench into which the modified offshore construction techniques plow reducing released when the was aimed at pipe project’s could be environ- at 5. At reopened. step, id. the third a mental impacts. (detailing pro- See See id. modifications). plow with a backfill would barge equipped posed The CTDEP never- dredged fill in trench with materials. theless denied February certification on See id. at 6. concluding pipeline project quality was inconsistent with state water passes, barge these three In each of (1) in at respects: standards least two likely anchor-mooring system use an would processes various associated with along pipeline path, to move the vessel installation “would temporary cause anchor lines and pulling releasing in bow disturbance, permanent change to lines. See id. 5. Anchor- stern anchor (the floor) ], the benthic substrate sea [ tugboats would move the handling bow negative impacts biota,” aquata to the pick up the stern anchors forward goal inconsistent with the of Connecticut at 5. Each anchors. See id. time anchors Quality Surface Water Standard No. “to set, they necessarily were thus would chemical, restore or maintain the physical, floor, dispersing strike the sea sediment biological integrity waters,” of surface depression leaving deep several feet (internal id. at 95 quotation marks and roughly square per over areas of feet (2) omitted); citations backfill dis- 41 (citing strike. 2006 Denial at TRC charge would permanently degrade waters Corp., Impacts Analysis Report Envtl. vicinity Islands, in the of the Thimble ren- (Feb. 12, 2002)); see also TRC Envtl. dering the seabed unsuitable for various Analysis Corp., Impacts Report 3.1.3 organisms presently shellfish and inhabit- 2003) (May (updated version of 2002 Re- area, ing the which result wоuld be incon- port) (estimating total area im- “[t]he sistent with Connecticut Surface Water pacted by drops anchor plow- Quality Standard No. 2 and Connecticut’s acres”). ing operations would be about 7.3 anti-degradation policy, requires which Meanwhile, cables attaching the an- “the protection maintenance and of water drag barge chors to across the sea quality in high quality protec- waters and moved, barge resulting floor as the “ca- tion and maintenance of uses in all causing depressions ble shallow sweep,” cases,” (internal id. at 100 citations omit- the seabed and further dispersing sedi- ted). challenged (cit- ment. 2006 Denial at 40-43 & n. 60 denial a state action filed alia, ing, Corp., inter TRC Envtl. Impacts Court, Connecticut Superior see (Feb. 2002)). Analysis Report Co., Pipeline LLC v. Envtl. Prot. C. to Secure Comm’r, No. Efforts HHD-CV-04-4022253-S Quality

Water Ct., 21, (Conn.Super. 2004), filed June Certification subsequently which it withdrew. 1. The Denial CTDEP’s Certi- 2001 of fication 2. This Court’s Vacating 2006 Decision applied first to the the CTDEP’s Initial Denial CTDEP for a water certification project 13, for on pipeline February its Islander East’s withdrawal of its state I, 2002. See Islander East 482 F.3d at challenge and its initial petition for review following year, 13, 2003, The by on March prompted by this court were Congress’s application East withdrew that enactment of the Energy Policy Act of 2005, 109-58, substituted a new one incorporating Pub.L. No. 119 Stat. 594. 313(b) § that project of the Act amended 19 of the was with Section inconsistent Sur- 2, Quality afford United Courts of face the NGA to States Water Standard No. the “original jurisdiction court Appeals agency failing exclusive faulted the for to de- affected, any over action for the review of an fine the area civil not acknowledging agency ... engineered order or action of Federal or evidence that backfill could im- acting pursu prove habitat, agency State administrative shellfish on relying neg- issue, condition, ative past experiences ant to Federal law to with construction license, concurrence, deny any projects in permit, the Sound without considering approval required subsequent under Federal law” in pipeline ... advances construc- gas technology. for the of a natural facili tion See id. at construction 100-04. 717r(d)(1); see ty. 15 also Is U.S.C. The court’s conclusion that the I, (noting lander East F.3d of CTDEP’s denial certification was arbi petition judicial review trary and capricious by was reinforced day was filed same amendment on NGA two further facts: the surprising brevity law). signed was into analysis of the agency’s to the relative vo court, argument, Following complex record, ma- luminous and see id. at decision, 105,7 jority rejected CTDEP’s con- documentary suggest the evidence retroactivity challenges ing agency stitutional and to pre-determined the had petition. oppose Islander East’s first See Island- to pipeline project any the under I, circumstances, er Turning 482 F.3d to see id.8 the While court’s merits, independent the court concluded that the review of the voluminous ad was, CTDEP’s denial of certification as a ministrative some record identified evi whole, arbitrary and dence capricious. potentially supportive See id. at of conclusion, respect 104-05. to the CTDEP’s majority With CTDEP’s de project conclusion that was clined “to inconsis- mine record for evidence” Quality tent with Water id. at agency, Surface Standard identified noting No. the court observed that the CTDEP of principles administrative review “may had failed to cite instructing both record evidence federal court reasonably finding supporting per- supply agency its a rationale for action manent agency provided harm natural habitats and where the has none” or substrate, benthic see id. at 98-99 for an (noting support agency’s “construct conclu support pointed that cited did not conclu- sion when sources has not favoring sion that sedimentation area evidence the record its dеci sion,” permanent (citing result loss shellfish id. at 101 Motor Vehicle habitat), U.S., contrary address evidence Ass’n Inc. v. State Mfrs. (“State see, point, e.g., (noting on the Farm Auto. id. at 97 four Mut. Ins. Co. Farm”), reports 42-43, projecting recovery shellfish 463 U.S. 103 S.Ct. habitat). (1983)).9 forAs the CTDEP’s conclusion L.Ed.2d lengthy 7.In Islander East we 8. The court that "some evidence indi- contrasted noted FERC, greater cates the CTDEP's concern with reports by August such as mounting pre- public campaign relations FEIS, spanned pages, which hundreds building clude than with neutral- report, the CTDEP which contained “a mere ly evaluating record evidence.” Islander pages analysis, supported by two-and-a half I, 482 F.3d at 105. citations, five record none of which ... rea- support sonably the broad conclusions Kearse, opinion Judge dissenting in her reached.” F.3d at 104. I, did for evi- mine the record supporting dence denial deci- CTDEP's being careful to “draw no Islander East we concluded that Accordingly, question subject two-step whether the record evi- is consider- as to conclusion” grant step the CTDEP to Is- ation. See 482 F.3d at 94-95. At obligated dence one, application, employ we we de novo East’s certification review deter- lander agency to the with complied the case mine whether CTDEP with remanded it “conduct the sort of requirements of relevant federal law. instructions required by review “If illegality and reasoned See id. at 94. no is uncovered complete review,” during proceed step at 105. such we law.” Id. challenged two to examine the CTDEP’s 2006 Denial Certi- 3. The CTDEP’s findings and conclusions “under the more deferential arbitrary-and-capricious stan- fication usually dard of review accorded state ad- remand, the CTDEP reexam- Following ministrative bodies’ assessments of state and, 19, on December ined the record (internal principles.” quotation law Id. applica- again denied omitted). marks and citation quality a water certification. See tion for attempt not here 2006 Denial. We do before, easily As conclude that the findings made and outline the numerous complied procedural CTDEP with the dic- agency’s in the conclusions reached 82- applying tates of the Clean Water Act in many we review page decision because quality state water standards to Islander opin- section of this these the discussion permit application. See 33 U.S.C. simply ion. note that Islander East We 1341(a)(1). 1311(b)(1)(C), 1313, §§ This judicial review, promptly petitioned for ar- only analysis: leaves step second denial guing that this second was also arbi- whether the CTDEP’s determination trary capricious. project would violate Connecticut’s wa- “arbitrary, ter capri- standards is II. Discussion cious, discretion, an abuse of or otherwise accordance with law.” 5 U.S.C. A. Standard Re- Jurisdiction 706(2)(A). § view Energy Policy Act of Under the Under the arbitrary-and-capricious standard, jurisdiction judicial this court to remand the has review of agency action Farm, if it “in- necessarily denial certification is is narrow. See State governing 2856; consistent with the Federal law 463 U.S. at 103 S.Ct. Environ EPA, (2d prevent such and would the con- [action] mental v. 369 F.3d Def. struction, Cir.2004). expansion, operation of the A reviewing may court not it facility subject to weigh [the NGA].” 15 U.S.C. self the evidence or substitute its 717r(d)(3). dispute judgment There is no that the for that agency. of the prevent Farm, 2006 Denial would the construc- State 463 U.S. 103 S.Ct. 2856. gas pipeline. Rather, tion of natural deciding agency whether action question This leaves whether the capricious, a court consid denial is inconsistent federal law. In ers agency whether the “relied on factors (stating sion. See 482 F.3d at supported by 108-16 “We if it is decision substantial evi- supply agency are not to the rationale for an dence on the record considered aas whole.” decision; (internal agency quotation but where has stated its marks and citations omit- rationale, ted)). may surprisingly, or where its rationale reason- Not much of that evi- discerned, ably required we are to review dence is now relied on the CTDEP in record, uphold support whole and to of its second denial of certification.

151 Congress ously which has intended it to erred in appreciating the significance consider, entirely (internal to consider an im- failed of the evidence” citation omit- portant problem, ted)). aspect of the offered an majority While a of this panel did explanation for its decision that runs coun- reach that conclusion in Islander East agency, ter to the evidence before or is 97-100, 482 largely F.3d at because of the implausible so that it could not be ascribed paucity of findings CTDEP, made to a product difference view the see United States v. Int’l Bhd. Team- agency expertise.” 7d10 sters, (2d Cir.1999) 136, (ob- 170 F.3d 143 serving “guard that court against must an suggest judicial This is not to that agency ... drawing inferences that are merely review of is agency perfunc ‍‌‌​‌​​​‌​​‌​‌​​‌​​‌‌​​​​​​​​‌​​‌​‌‌​‌​​‌‌​‌‌‌‌​‌‍ action arbitrary in found, relation facts no tory. contrary, To pre within the matter may how substantial be support judicial inquiry scribed sphere, narrow “ ” (internal for those quotation facts” marks must be and careful.’ ‘searching Na omitted)), and citations we cannot do so Soc’y Hoffman, tional v. Audubon 132 here where the challenged CTDEP’s deci- (2d Cir.1997) 7, 14 (quoting F.3d Marsh v. sion supported by more detailed findings Council, Oregon Natural 490 Res. U.S. analysis. 360, 378, 1851, 104 109 S.Ct. L.Ed.2d 377 (1989)); Brown, 516, See Ward v. F.3d (2d Cir.1994) narrow, (“Although ap B. The Challenged Denial of Certifica- pellate review of an administrative record tion Cannot Be Deemed Arbitrary careful, must thorough nonetheless be and Capricious

probing.”). Notably, court must be sat In its second denial of Islander isfied from that agency the record “the ... application for a water quality certi examine[d] the relevant data and articu fication, explained the CTDEP that pri explanation a satisfactory late[d] for its mary concern siting was the of the pro Farm, 43, action.” State U.S. at posed pipeline in a Connecticut coastal Further, S.Ct. 2856. the agency’s decision area that includеd “an extensive stretch of must reveal “a ‘rational connection be shallow water” that as a served natural tween the facts found and the choice ” shellfish, habitat for a variety of including made.’ Id. (quoting Burlington Truck oysters. clams and Denial Lines, States, at 9. As Inc. v. United 371 U.S. noted, supra we earlier (1962)). see 143 n. 83 S.Ct. 9 L.Ed.2d 207 A expressed FERC had similar concern in court lightly will not reach a conclusion identifying environmentally preferable that an has not examined all rele route, thought alternative satisfactorily vant data but demonstrated a mitigate East would rational be able to the adverse connection between the facts it impacts plan. evaluating has found of its and its final decision. See Pat that Inc., question, terson v. Caterpillar, 70 F.3d CTDEP determined that the (7th Cir.1995) (observing dredging, that plowing, backfilling court methods “must very be confident employ decisionmaker important overlooked something installing or seri- shallow waters Congress’s The Clean Act Water reflects into use and value consideration their for agencies public intent that supplies, propagation state environmental con- water of fish and wildlife, sider the in a purposes, agricul- factors enumerated state’s fed- recreational tural, industrial, erally-approved purposes, standards. See and other and also 1313(c)(2)(A) (providing taking 33 U.S.C. into their use and consideration value taking navigation”). "[s]uch standards shall established adversely affect shellfish habitat and drawn therefrom. We consider would existing designat- an loss of whether there is sufficient evidence in the cause the use, ie., shellfishing, unaccept- over an provide ed support record rational for the See 2006 Denial ably large area. by agency choice made in the exercise proposed means Because Islander Earn, of its discretion. See State 463 U.S. remediating consequences these were of 42-43, 103 S.Ct. 2856. On this deferen- effective, uncertain to be con- tial standard of review of the record cluded that Islander East had failed to case, deny petition Islander East’s pipeline project demonstrate review. comply quality with state water

would necessary as to secure certifica- standards Along Habitat the Pro- Shellfish tion. 482 F.3d at 104 posed Pipeline Route (noting “Islander East’s burden demon- Denial, challenged In the strate its entitlement to favorable action CTDEP tracked the route of the application”); on its see also [certification] entry point Long from its into Keeney, Town Newtown v. 234 Conn. of Island Sound at a recessed section of Con- (Conn.1995) n. 661 A.2d 589 necticut shoreline near Branford across an (noting that applicant in ad- Connecticut expanse relatively of shallow waters proceeding ministrative bears burdens of through the Thimble Islands. See 2006 production persuasion). Denial at 8. The CTDEP identified seabed In petitioning for review of the CTDEP conditions in this area particularly hos- denial, Islander East submits two pitable to shellfish cultivation. See id. at findings critical challenged to the conclu- 12-13 (describing product how seabed was (1) sion unsupported by are the record: glacier of advances and retreats that had that the pipeline pass through exist- deposits layered left “[t]hick silt and (2) habitat, ing potential or shellfish seabed); clay” on (analogizing id. at would have adverse prized such seabed to topsoil that shellfish- impact resulting on that habitat the loss “juvenile ermen could stock with seed of an existing designated use. shellfish” much plant as farmers fields and, indeed, East does could not— not— seed). crop variety with It identified a argue that, if findings supported these are commercially valuable shellfish found in evidence, the denial of certification area, including oysters, eastern hard should be capricious. deemed clams, mussels, and soft blue and channel earlier, As we noted 40 C.F.R. whelk. See id. at 23. The CTDEP noted 131.12(a)(2) that, pursuant states to the that the Connecticut Department Agri- Act, Clean Water a “State shall assure approved culture had for direct human adequate protect consumption procured the shellfish fully.” uses Consistent with this obli- “consistently gation, excellent” nearshore wa- Connecticut Quality Surface Water ters in which the pipeline Standard would be install- provides No. that “[e]xisting 21-25; CTDEP, ed. Id. at designated Map: see also propagation uses such as fish, shellfish, ... CT Waters Less Than 50 ft. necessary and the water Classified as SA/SB, protection for their SA or Dep’t Agric./Bureau is to be maintained and protected.” addressing Aquaculture “Approved” Shellfishing (Jan.2007). challenge, Designation we reiterate that we do not The fur- weigh ourselves the evidence or choose ther noted that the sea floor beneath these among competing might inferences that be nearshore waters had been divided plots CT) state and local authorities into Juniper (Branford, ronments off Point beds, (Jan.2002), actively which are at 11 leased to shellfish- and to testimony from Zajac that, Dr. Roman 26, 55, ermen. See 2006 Denial at 59. while the pipeline support shellfish, corridor could oysters no In Islander we East faulted the or hard clam populations actually were in failing, its initial denial of there, found see Siting Conn. Council certification, point specific “to to even one 54-55, Hearing 12, Tr. at Apr. by pro- lease” that would be affected Certainly, this legitimate evidence raises posed pipeline. 482 F.3d at 101. The questions about impact of the proposed 2006 Denial remedied this defect identi- pipeline on existing and designated shell- fying directly four shellfish beds that lie fish Significantly, use. the CTDEP did proposed path above the for the tunnel to ignore this evidence. Islander Cf. be created horizontal drilling. See 2006 /, East (faulting F.3d at 98 agency for Further, Denial at 59. the CTDEP failing to address studies contradicting its that dredging plowing showed and activi- conclusions). Rather, it appears to have ties would affect five state shellfish bеd accorded little weight light of the leases and an unidentified number of leas- cyclical nature of commercial shellfishing, jurisdiction es within the of the town of which could account for the reported fail- Branford. id. (identifying See at 44-46 ures to find shellfish at certain sites on 347.54 acres of affected state leases and discrete occasions. See 2006 Denial 24- 240.38 acres of affected Branford shellfish explained, As the CTDEP oysters and beds).11 evidence, totality From the of this clams spend early often part of their rationally CTDEP could conclude that hatcheries, only lives being later moved pipeline construction activi- by fishermen to seabeds to mature. See adversely ties would existing affect and Further, id. at 24-25. because clams bur- designated shellfish habitat and uses. row, shellfishermen must dredges use In challenging conclusion, this specimens, 25-26, harvest mature see id. at East submits that the CTDEP has mis- and the surveys CTDEP cited noting “ex- characterized the record to create a false tensive trawl marks” likely attributable to impression that question the area in just shellfish harvesting past milepost “critical” shellfish habitat. Br. Petitioner’s facts, id. at together 26-27. These at 23-25. Islander East asserts that the the evidence of active shellfish leases to actually area supports living few or no fishermen, commercial provided sufficient shellfish, such that construction of the support record for the CTDEP to conclude rationally cannot be inconsistent waters corridor an are with Connecticut’s quality stan- existing designated habitat for shell- dards. To support argument, this Island- fish and that shellfishing is an er points study to a in which divers designated Thus, use of these waters. oysters found no or hard clams at sites cannot conclude that finding was arbi- along pipeline route, see Peter E. trary Pel- capricious. See Universal Cam- legrino, Bottom Surveys NLRB, Characterization Corp. 474, 488, era v. 340 U.S. (1951) Selected Subtidal and Nearshore Envi- (holding S.Ct. 95 L.Ed. 456 designate 11. While Branford lacking did not evidentiary supрort these so as to be 2005, i.e., shellfish beds until arbitrary capricious. after Islander generally permit application, they may East had filed its (instructing U.S.C. courts "review appropriately be considered in our determining determina- the whole record” in whether tion of agency whether CTDEP's are capricious). conclusions action is may displace agency’s court served. See Universal Camera v. reviewing Corp. fairly conflicting NLRB, “two choice between 340 U.S. at 71 S.Ct. 456. evidence). views” of Mindful that it was Islander East’s burden to demonstrate to the CTDEP that Existing or Des- 2. Elimination of pipeline project complied with state water Consequence as a ignated Use standards, see Town Newtown v. Pipeline Construction Conn, Keeney, 234 n. 661 A.2d challenge considering we consider whether the finding to the second instal- CTDEP are findings sufficiently grounded in rec- —that lation of would result in the the rationally support ord evidence the chal- harvesting shellfish in loss of commercial lenged proposed conclusion that the pipe- the in the nearshore corri- waters line in existing would result a loss of and that, making dor—we note at the outset in designated use, shellfishing see State determination, this the CTDEP discussed Farm, 463 U.S. at 103 S.Ct. 2856. considerably in more detail than in- we in opinion clude this a voluminous record a. The Anchor Strikes Effects of (1) geological of evidence relevant to the and Sweeps Cable development question of the seabeds in as habitat, valuable shellfish see 2006 Denial (1) The Findings CTDEP’s (2) 12-14; the influence of tidal currents The CTDEP barges found the used habitat, and marine conditions on this see lay pipeline generally would be (3) 14-16; sensitivity id. at the of the equipped array with “an of 8 to 12 an- in habitat to disturbances the benthic sub- chors,” each anchor weighing from 7 to 15 16-19; (4) strate, id. at and see the tradi- place by tons and held in cables. 2006 tional means of shellfish cultivation and Denial at 34. As a barge moves forward harvesting in Connecticut’s nearshore wa- lay, plow, either to pipeline, backfill the ters, see id. at 23-27. The fur- CTDEP anchors would strike the seabed. (5) ther evidence of reviewed the methods East’s own evidence indicated that each installing Islander East to use footprint anchor 1 likely would to 3 feet issue, 27-39; the pipeline at see id. at and deep, disturbing square feet of (6) sedi- likely effects of such methods both ment. See id. at 41 (citing Impact TRC generally on water and benthic (Feb. 2002) Analysis Report at 30 specifically substrate and on the estab- Report” “Gulfstream (surveying post- shellfishing, lished use see id. at 39-72. installation conditions in the Thus, Gulf of Mexi- contrast Islander East co)). Meanwhile, cables attached to agency’s each second consideration of Islander drag anchor would along the bottom of application was more careful and floor, cutting sea into the thorough. say This is not to seabed—albeit considerably less deeply than extensive evidence before the anchors— pointed releasing further ineluctably single in a sediment into the direction. To contrary, depths column. frequently was less than 50 feet, presented 1,200 conflicting quantitative the anchor cables would extend findings expert opinions. was, It feet from each barge, forming how- side of the ever, CTDEP, responsibility activity of the corridor of approxi- construction court, 2,400 to resolve mately record contradic- feet wide. See id. at 46. tions and to determine which Although buoys” evidence was “midline suspend most persuasive and what weight it de- part of the anchor cable above the sea floor, plans using array feet of each cable line to avoid anchor as much floor, sea along leaving drag would still that area. See Letter Arthur J. Roc- In waters suit- Jr., CTDEP, incisions. id. at Comm’r, See que, H. Gene i.e., harvesting, at depths able for shellfish Muhlherr, Jr., (July feet, than the CTDEP concluded of less 2003); Denial, 2; App. see also A at affected anchor the corridor Application, Permit Installation Methodol- sweeps would be strikes and cable 3.85 ogy error, assuming 1. Even such how- a total long, occupying area of about miles ever, the evidence of anchor strikes and 1,120 longer no be avail- acres that would sweeps mileposts cable in waters between harvesting. id. at able for shellfish 12 and 20 to support was sufficient 40-41, 70, (concluding that 588 acres of finding significant CTDEP’s aof loss of existing desig- and 531 acres shellfishing designated shellfishing use.12 lost). nated for would be shellfishing

Second, clear identify no error (2) Challenges CTDEP’s that an conclusion anchor corri- Findings

to the dor by scarred anchor strikes and cable sweeps in entirety would be lost its to that the argues Islander East CTDEP shellfishing. The CTDEP reached this impact area and of exaggerates both the conclusion, it not because assumed that all sweeps. It these strikes and submits that 1,200 feet of anchor would sweep cable erroneously included in the CTDEP floor, alleges, sea petitioner as but because anchor corridor ‍‌‌​‌​​​‌​​‌​‌​​‌​​‌‌​​​​​​​​‌​​‌​‌‌​‌​​‌‌​‌‌‌‌​‌‍an area calculations of the by it found that depressions plow- left bordering pit of seabed the exit and ing, strikes, anchor and even reduced milepost cable dredge section from 10.9 to mile- 12, sweep would it too difficult for har- post thereby inflating the area make affected vesting by sweep by equipment operate throughout anchor strikes and cable 322 Further, erroneously acres. Denial at corridor. See 2006 70 & n. 1,200 assumed that the full feet of anchor (distinguishing 84 shellfish habitat between beds). sweep Finally, cable would the sea floor. and cultivable shellfish Evidence that, even within the asserts showed that would not ven- shellfishermen sweeps, identified corridor strikes and of terrain for ture into such scarred fear of slight. the actual be damage would While damaging equipment. their See id. at 70- may merit, argument the first have some 71; Volk, John H. Memorandum from persuades none us that the CTDEP’s 2006 Jacobson, Dep’t Agrie., Conn. Sue capricious. Denial was or 2002) (Oct. 4, (noting CTDEP at 2 caused topographic irregularities First, finding that the CTDEP’s Island- dredging will “area unsuitable for render er an anchor-propelled East would utilize fishing shellfishing” commercial barge relatively in the shallow waters in project “will a multitude of result dredge pit may above the exit section irregularities ‘scars’ significant benthic light have been of evidence erroneous anchors, caused numerous sets of indicating that Islander East had modified above, id. We of these acres 12. As the CTDEP calculated note that none are described supporting the area corridor jurisdiction anchor of the Town of within the Bran- designated shellfishing ford, use of at separating boundary as the Branford 1,120 Denial at acres. See 2006 70. Exclud- shellfish state shellfish leases lies beds from 12, mileposts ing the seabed from 10.9 to mileposts and 12. See between 11 Petition- projected shellfishing over anchor corridor Br„ Ex. B. er’s appears area to be reduced 798 acres. See Third, not act arbitrari- the CTDEP did Larry sweeps----”). cable spuds, Dr. shellfisherman, failing to embrace ly capriciously Williams, a commercial proposed pipeline that the Zajac’s opinion harvesting shellfish only testified minimal scar- cable topo- would result in areas of operate could dredges Hearing Siting Council Siting ring. See Conn. see Conn. irregularity, graphical 12, (testifying that Apr. Tr. at Apr. Hearing Tr. Council disturb sweeping probably “cable (“[I]f topography bottom left with a you’re of the upper ... few centimeters [only] here irregular and soft upset and that’s so sediment”). before the Evidence basically it becomes ... and hard there scarring work, degree that the of cable indicated dredges don’t undredgeable, body of vary widely single even in a can high spot, they’ll drop cut into they’ll work.”), the distance of depending just ... doesn’t spot into low composition the anchor and the cable from personally had observed that he he stated at 41 See 2006 Denial damaged by of the seabed. in an area irregularities such in Gulf (noting installation gas pipe- a natural a 1991 installation Mexico, scarring ranged cable depth line, see 2006 Deni- “Iroquois pipeline,” inches);13 Auth. 4 to 12 Power Siting Hear- Council (citing al at Conn. cf. (2d 2002). FERC, F.2d New York v. 93, 96, While Apr. ing Tr. Cir.1984) that, “although rea- (observing possible might that it testified Williams differ to the infer- ca- sonable minds could anchor strikes and navigate around from the might ences that be drawn mapped were with sweeps “if the holes ble by agency’s finding supported sub- proof,” and “sonar geometry” GPS coordinate upheld). Fur- furnished,” evidence must be Siting Conn. stantial mapping was ther, arbitrary capricious it was not or Apr. Tr. at Hearing Council dispersal to consider sediment record demonstrated the the CTDEP nothing in the as strikes in by sweeps as well technology, this much less caused availability of assessing the loss of waters available for application the likelihood of its successful finding relied shellfishing. The CTDEP’s supply- East’s commitment to or Islander FEIS, Muhlherr, which referenced anchor on the ing it. Letter from Gene Cf. Evans, sweeps differen- Jr., East, strikes and cable without to Charles H. 2003) that, observing once sediment (May (referencing Is- tiation CTDEP floor, density it loses provide an released from sea lander East’s commitment “ and becomes more sus- survey the coordinates and cohesiveness ‘as built’ construction,” at 47. ceptible to erosion. See 2006 Denial following with no long-last- that further indicated mapping individual anchor The FEIS mention added)). depressions associated with anchor sweeps (emphasis ing strikes or cable record, sweeps can act as “sedi- failure to strikes and cable On this CTDEP’s turn, which, in extraordinary traps,” can lead speculative reference ment develop sediments that consider- mitigation in its consideration of “anoxic measures origi- from the hardly ably its ar- different communities lost use renders conclusions long-term and “a conversion bitrary deposits” nal capricious. Nevertheless, report provided some evi- 13. The CTDEP was careful to note that differ- composition skepticism dentiary support and current ve- ences seabed for the CTDEP’s assumption locity precluded an that the im- prediction of minimal to Islander East’s pacts experienced in the would translate Gulf scarring. cable See 2006 Denial at 43 n. 58. the Sound. (quoting ployment improved would, of benthic habitat.” Id. FEIS 3- techniques (internal omitted)). best, quotation marks “minimize ... but not eliminate” the anticipated effects “anchor strike and that While the FERC concluded remedi- sweep impacts.” cable 2006 Denial at 43. might al measures be devised to minimize Substantial evidence supports effect, there was record evidence be- finding CTDEP’s that technological suggesting fore that depres- the CTDEP methodological advances that distin- would, sweeps sions caused strikes and guish the proposal fact, long lasting. Shellfisherman from Iroquois pipeline would not suffi- that, period Williams testified over a ciently reduce the damage risk of caused years, per- some four he had observed the by anchor sweep strikes and cable to avoid scarring sistent the seabed caused the loss of designated Iroquois gas pipeline. installation of the shellfishing significant use of a See id. at 43. Islander East submits area. the face because the of scientific or approved the Iro- technical uncertain- ty quois pipeline scope as consistent with Connecti- as to the of adverse effects from standards, quality action, cut’s it cannot nothing in the APA pre- rationally respect conclude otherwise with agency vents an considering a “worst pipeline proposal. to Islander East’s This case” scenario. New Reilly, York v. Cf. argument point misses the essential that (D.C.Cir.1992) 969 F.2d CTDEP, the benefit of hindsight, (“[E]ven if [agency’s] prediction did take Iroquois pipe- has now concluded scenario, into account the worst case comply line failed to with the state’s water permissible.”). Thus, action would be standards, is this realization cannot conclude the CTDEP’s consid- that now informs its denial of the Islander eration of the consequences adverse of the proposal. recognized It is well Iroquois pipeline issuing installation in “an given ample must be latitude to 2006 Denial capricious. was adapt policies [its] rules and to the de- argues Islander East further that it was changing mands of circumstances.” State arbitrary capricious for the CTDEP to Farm, (in- 42, U.S. S.Ct. 2856 deny it despite, certification allow- quotation ternal marks and citations omit- ing the Company Cross Sound Cable ted). Here changed circumstances are bury heavy power transmission cables be- the observed adverse effects of the Iro- Long neath Island Sound. The pro- latter quois pipeline despite the passage of time. ject distinguishable in at im- least two In Islander East we faulted the CTDEP portant First, respects. appear does failing acknowledge for that Islander presented to have significant problems of employ more advanced anchor strikes sweeps. and cable The nar- technology than had been available at the rower trench needed to pow- accommodate Iroquois pipeline installation, time of the er dug, cables was not with a mechanical see 482 F.3d at or to “point to evi- plow by towed barges, dence but with a indicating improvements] that [such “Smartjet” rig, remotely operated would have vessel inadequate been to avoid the “pressurized that used topographic irregularities water to fluidize caused installation,” Iroquois id. at sediments into which the ... cables would 104. The Council, acknowledged Siting CTDEP has now settle.” Conn. Finding considera- (Jan. Facts, technological 2002); ble Dkt. advancements since the No. 208 at 13 Sound, installation of the Iroquois pipeline; Long see also Task Force on never- Island theless, it found that Islander East’s em- Comprehensive Report, Assessment and II, Resources and En Engineered

Part Environmental b. Backfill Long Island Sound ergy Infrastructure While the findings CTDEP’s as to the 2003) (“Task (June 3, at 78 Force Re lost shellfishing use caused anchor to the port”). The schematics attached itself, sweeps, by strikes and cable war- Company’s permit ap Cross Cable Sound rants our petition, denial of Islander East’s plication a 100-foot “work corri indicate that conclusion is further supported by the dor,” of an with no mention “anchor corri agency’s identified regarding concerns of anchor use. dor” or indication ability of engineered backfill to restore 5.5 (Mar. CTDEP, Permit No. 200102720-MG acres of shellfish habitat that would be 2002). Second, while the Cross Sound destroyed by dredging pit the exit and the beds, project shellfishing Cable traversed adjoining mile-long trench. See 2006 De- 65-69, the beds at issue were dormant with no nial at future evidence of foreseeable use. The again, Once the CTDEP’s concern de- path record indicated that the cable trav rives from the site of the proposed pipe- along eled navigation 3.75 miles line. pit The exit and trench would be route, Channel, Navigation the Federal in dredged waters, in nearshore to13 20 feet substantially order “to avoid cultivated deep, that designated are used and Report shellfish beds.” Task Force at 78. shellfishing. Although Islander East had To the extent shellfish beds were delineat originally planned dredged to mound ma- Navigation Channel, ed within the Federal adjacent terial pit to the and trench for now, they were “not and have not been subsequent backfill, evidence indicated actively for at previous cultivated least the that waves and wind-generated currents Council, years.” Siting five Conn. Find the affected posed waters a serious risk of Thus, ings of Fact at 21. in contrast to dispersing water, spoil sidecast into the case, resulting where CTDEP found that in sedimentation. See id. at 36. Apparently, pipeline project deposits sediment mil- few may limeters thick cause a smother some benthic long-term shellfishing loss of beds species, including “juvenile oysters.” use, Id. existing or foreseeable future (citing at 51-52 Letter from John C. Ro- project Cross Sound implicated only Cable berge, Roberge Engi- Associates Coastal dormant expected beds were to re neers, LLC, to Opie, John First Select- main so. Where circumstances are thus man, (Feb. Town of Branford at distinguishable, the different CTDEP rul 2004)). To concerns, alleviate these Is- ings do not demonstrate or capri lander East proposed to remove the Farm, decision-making. cious See State dredged sediment and engi- to use an 42, 103 463 U.S. at S.Ct. 2856. neered consisting material of small rocks sum, light in of the totality of the and sand to refill the trench. In denying supporting finding evidence the CTDEP’s certification, the CTDEP “[djiscrep- noted use, of lost finding as well as its in ancies regarding precise record” Islander East had failed to demonstrate composition material, engineered (or could) that it would even restore the which it impossible made to assess “the scarred seabed within a reasonable time to full extent resulting sedimentation” and pre-installation condition, we conclude the “scour resistance” of the backfill. Id. agency that the arbitrarily did not act at 38-39. More important, the CTDEP capriciously denying a water cer- noted that prediction no “reasonable tification to build the pipeline. community benthic establishment” could knowing acknowledge made without “the exact sedi- be evidence suggesting likely re- grain covery, ment size difference between the see id. at agency 102-03. The has now points native substrate” that addressed both at length, would ex- plaining why gave weight” removed “and the new backfill” that “little those studies predicting rapid replace it. Id. at 39. restoration of shellfish habitat based on seabed recov- Islander East concedes what the record ery from natural disturbances. 2006 Deni- confirms, i.e., that composition “[t]he al at 66. The expressed CTDEP is backfill unrеsolved.” Petitioner’s no reason to doubt perfect under 28; (com- Br. at see 2006 Denial at 36-37 circumstances, substrate, in the native paring proposal Islander East to use sand benthic organisms would eventually re- top gravel of rock or less than 4 inches cover. The three to year recovery five Haley Report in diameter with Aldrich & predictions offered the above-refer- no recommending more than 2-inch diame- enced scientific generally studies are gravel together ter with .187-inch coarse based on observations of benthic com- sand). percentage sand and small of fine munity succession following dredging or Nevertheless, it submits that it should not other disturbances such as storm events permit good be denied a for its faith ef- which redeposit naturally-occurring [] mitigate forts to the CTDEP’s concerns sediment which is not the case with the dredged about the sedimentation of mate- activity proposed by Islander East. The argument rials. Islander East’s might be habitat needs to recover before the persuasive if the had imposed CTDEP organisms benthic can recolonize the supplemental condition on an otherwise area.... primary factor in [T]he recov- meritorious application. certification But ery obtaining time is first habitat suita- that is not the It undisputed case. bility. practice casting dredged spoil usual Moreover, original). Id. (emphasis subsequent to the side of a trench for noted no available studies “that backfill legitimate raised concerns about predictions offer on benthic colonization along sedimentation the proposed pipeline new, entirely and very different materi- Thus, application route. al than the native substrate.” Id. was meritorious without the inclusion Observing that the native substrate to be proposal adequate of a concrete backfill displaced by Islander mitigation In proposing measures. alter- compact, fine-grained consisted of carry native backfill materials to its certifi- sediments, see id. at cited burden, cation introduced indicating evidence that the replacement of suitability new concerns about the of for- rocky such material with a predominantly eign backfill as shellfish habitat. It was backfill deprive would not soft shell- capricious for the CTDEP they fish of a medium into which could to have noted those concerns or to have burrow, it pre- would also attract shellfish sought them preliminary resolution dators, (citing see id. at 68-69 comments granting certification. Volk, H. Department John Connecticut In Islander East we faulted the Agriculture). Although Islander East failing CTDEP for to cite both record evi- a report indicating rocky submitted that supporting summary dence conclusion actually promote backfill could habitat di- engineered that backfill “perma- would versity by “improving] for two conditions nently degrade along the benthic substrate species, oyster valuable commercial route,” lobster,” Corp., 482 F.3d and to TRC Envtl. Evaluation of East, Associated with Islander lander Impacts

Benthic we conclude that the CTDEP Offshore Construction did act arbitrarily capriciously East’s Modified in (Feb. 17, 2003), § 4 Techniques we cannot relying on the lost use attributable to arbitrarily the CTDEP acts conclude that backfill concerns as well as the lost use when it fails to view capriciously attributable to anchor strikes and cable in certain spe- increase shellfish in potential sweeps denying certification. offset for the adequate cies decrease as c. Sedimentation and Drilling

in such as soft-sediment species, other Fluid Release of balancing square- This sort falls clams. agency’s

ly within environmental ex- The CTDEP cited two additional rea- pertise, and consistent with the federal denying sons for Islander East a water anti-degradation “[sjpecies mandate that (1) quality certification: dredging and body in that are and which are (even removal) plowing spoil with would designated with the use ... consistent sedimentation, cause adversely affecting prevalent even if not in protected, must be habitat, more than 80 acres of shellfish see Questions importance.” number or (2) 50-55; id. at planned and un- EPA, Antidegradation, Answers Wa- planned drilling releases of fluid would Handbook, Quality ter App. Standards G destroy at least 3.55 acres of shellfish habi- (2d ed.1994) (emphasis in original). tat, see id. at 56-65. While both concerns legitimate, are identify some evidentia- that East submits Islander ry issues with the CTDEP’s conclusions proposal failed to note its alternative might that warrant remand in the sand, absence backfill the trench substance grounds the aforementioned deny predator avoid the noted con petition.14 Reinemann, cern. See Letter Joe East, Wachholder, to Joanne (1) Sedimentation 2003). FERC, (Apr. et al. While this may evidence demonstrate Islander East’s sedimentation, its discussion of good willingness explore faith alterna CTDEP cited evidence that sediment de- tives, showing absent a further posits a sand of 1 millimeter could cause per- likely backfill would restore the affected mortality cent species some benthic habitat, 5.5 acres to shellfish we identify deposits while of millimeters could cause no abuse of discretion the CTDEP’s 100 percent mortality species. the same specifically failure to address this alterna See id. at 51-52 (noting juve- further that tive. Denial at (noting oysters nile adversely could be affected Cf. original plastic cohesive, substrate was sediment”). “as little as 3 millimeters of so while sand would be a better back- applauding While Islander East’s use of rock, fill than it would not good be as installation methods that would reduce habitat). restoring silt in shellfish sedimentation, This is the CTDEP concluded that possibility to foreclose the that some sedimentation project associated with the engineered might backfill be identified to would still harm sufficiently “significant provide adequate assurance of habitat res area of both natural primе habitat and toration along proposed pipeline. But shellfishing preclude beds” to certification. in the absence of such a showing by Is Id. at 50-51. We provide discuss these concerns installing consistent guidance parties in the event the requirements should re- with the of federal and state (cid:127) new their possibility discussions about the law.

161 See, question. e.g., dress Li Hua Lin conflicting reports of this among choosing In Justice, likely Dep*t of result v. United States 453 F.3d degree sedimentation the of Cir.2006) (2d East pipe- of the Islander (remanding installation 111 based line, study conclusion). found conduct- the CTDEP the factual critical agency error Associates “most reliable by Roberge because, ed do not do so' for reasons We and extent of predicted of amount discussed, terms already conclude that the we at 53. That Id. dispersion.” sediment is rationally sup denial of certification layer that a 3-millimeter study estimated ported by findings other of lost use satis ap- over deposited of sediment would grounded in record evidence. factorily Cf. floor stretch- acres of sea proximately 35 Ass’n v. De National Home Builders of ,— of from the centerline the ing 131 feet -, 127 U.S. fenders of Wildlife id. at 53. Almost all trench. See (2007) 2518, 2530, L.Ed.2d S.Ct. town or state qualified this as acreage of (“ law, administrative ‘In as in civil federal (indicating id. at 55 beds. See shellfish litigation, and criminal there is harmless ” sedimentation would af- that 3-millimeter Labs., (quoting error rule.’ PDK Inc. v. beds 26.52 acres of Branford shellfish fect Admin., Drug United States Enforcement beds). 7.97 of state shellfish acres (D.C.Cir.2004))). 786, 799 362 F.3d Roberge study dredg- estimated that The layer a 1-millimeter deposit would also ing (2) Drilling Fluid Release approximately over acres. of sediment certification, In initial denial of its Roberge, Ro- Letter from John C. (1) conclusorily found that the use LLC, Engineers, Coastal berge Associates drilling technology of horizontal at the first Selectman, Opie, First Town of to John step of installation was inconsis- (Feb. 2004). Branford at 3-4 tent with state water standards court, In its to this the CTDEP brief drilling barrels fluid would because 455 of Roberge study now is concedes when the sea be released the drill exited flawed, resulting sig- in a mathematically (2) 10.9; milepost floor that un- at area nificant affected overstatement fluid, “frac-outs,” planned releases of The agency sedimentation. reduces drilling. in the In would occur course area to 6.2 identification of affected findings to the absence further by 3 millimeters sediment acres covered con- likelihood of frac-outs and adverse 1 millimeter of and 12.3 acres covered of fluid to shellfish hab- sequences releases Br. at 51 n. Respondent’s sediment. See itat, held this rationale insufficient this recal- Islander East asserts that I, 482 support denial. See Islander East flawed double culation itself because may not (noting F.3d that “we at certain acres. See Petitioner’s Re- counts agency’s for the supply a reasoned basis not Br. at n. 27. We need resolve ply given” itself has agency action that the because, even if were as- dispute this Farm, (quoting 463 U.S. at State re- the correctness the CTDEP’s sume 2856)). Denial, its 2006 S.Ct. calculation, explain agency does points. CTDEP addressed both exposure how discrete sedimentation of frac-outs As evidence the likelihood more smaller area will cause than project, in the Islander East the CTDEP species temporary loss of either benthic “in occurrences Thus, reports cited of such shellfishing. for use of waters drilling] pro- least of the [horizontal half ground were sedimentation sole regulated.” 2006 Denial certification, jects it denying ha[d] we would remand to Further, are noting that frac-outs to ad- opportunity afford the occur at likely to substrate transi- that drilling most fluid “tends to be resistant to tions, sedimentary rocky dispersion to a e.g., placed waters,” when in saline area, geo- observed that the Email Ludwig, CTDEP from Michael National Ma- logical Service, characteristics the Thimble Is- rine Jacobson, Fisheries to Sue many 2003). lаnds indicated such transitions. 1 (Sept. CTDEP at The record, id. On this we cannot con- rely CTDEP chose to on Ludwig’s Michael agency’s that the identified concern opinion clude and the prepared FEIS for the on the Islander likely with frac-outs FERC “ the conclusion because arbitrary capricious. project was ‘drilling fluids [lump together] flocculate ” bottom,’ and settle to the 2006 Denial at support concerning its conclusions To 3-53) (modification 57 (quoting FEIS in drilling fluid on the adverse effect shell- original), “[dispersión by dilution of this habitat, pointed the CTDEP fish to evi- gel-like mud into the water column un- supplied Ludwig, dence Michael an em- 3-54). likely,” (citing id. FEIS Where ployee of the National Marine Fisheries reasonable minds might thus differ on a 57 App. id. at & H. Service. See Mindful point, agency’s resolution of competing drilling percent fluid is 97 fresh water evidence cannot be deemed clay, bentonite percent Ludwig ex- capricious. See Universal Camera Corp. plained that shellfish cannot live fresh NLRB, v. 340 U.S. at 71 S.Ct. 456 exposed fluid, water. to drilling When (holding reviewing may court not dis- they close their shells to “hold [their] place agency’s choice fairly between “two so, In doing breath.” Id. the shellfish evidence). conflicting views” of inevitably clay, in some pull which would lodge gills. they in their As reopen to Recognizing the risks associated with expel clay, the shellfish exposed are fluid, to the release drilling Islander East water, causing fresh them to again, close advised the willingness CTDEP of its clay. more trapping cycle As the develop plans re- to contain and recover the itself, shellfish, peats breath, unable to substance. It submitted a containment suffocate. See id. plan offering alternative proposals, defer- ring its final choice until after a horizontal The depends, risk of such suffocation drilling contractor had been selected. The large part, drilling on fluid remaining fixed CTDEP proposals found these to be in place rather than dispersing. The evi “vague largely inаdequate.” 2006 De- point dence on this was conflicting. While 31; nial at see also id. at 58. We cannot suggested certain rapid dissipation, studies review finding because Islander East Denial, see App. H at (reprinting 3-4 has not included its proposals alternative Larry Gedney, Drilling Mud Poses Little appendix appeal and the CTDEP Hazard, Environmental Alaska Science has not filed a certified administrative rec- 7, 1984) (May Forum (noting that “after an 17(a). ord required by RApp. Fed. P. time, insubstantial amount of currents dis To the extent the disagreed sipated [drilling] fluids to levels that proposed definition of a innocuous”)); were Ltd., Garrett Group “significant” release of drilling fluid into Preliminary Report on Anticipated Bi Sound, 57-58, however, see id. at ological Impacts Associated with the Pro note a concern. posed Pipeline Project at 10 2003) (May 8, (stating that drilling fluids threshold for “rapidly dissipate any into background identifying a “significant” release warrant- concentrations”), other evidence ing indicated removal action was based on several (1) alia, monitoring plan, including factors, “the abili- Cable’s its defi- including, inter within a 200 foot “significant,” the release nition of as a reference. ty to contain See HDD Evans, on the drill CTDEP, corridor centered wide Letter from Charles H. to (2) deposits such “ex- whether path,” Muhlherr, Jr., H. Gene Islander East at Denial at depth.” 24 inches in 2003) ceed (May (enclosing copy redacted evidence that sedimenta- Referencing monitoring plan Cross Sound Cable little 1-2 millimeters deposits of as as tion stating “monitoring plan required. will be adversely organisms, affect benthic could the for sample Please refer to enclosed that the CTDEP concluded the reference”). may While Islander East satisfy to high” 24-inch threshold was “too signal have understood this reference to The quality standards. Id. state water proposed monitoring plan that its should evidence, any to point does not CTDEP duplicate that of the Cross Sound Cable however, supporting analogy an between in Company’s, light of the fact that the drilling the levels of sedimentation project’s latter horizontal directional drill- shellfishing fluid that would cause a loss of ing shellfishing would affect dormant might we remand to afford the use. While drilling beds while Islander East’s clarify point, to this agency opportunity beds, affect active cannot we conclude we have identified other reasons because arbitrary capricious it was for the of certification that are for denial CTDEP to conclude that stricter release evidence, by we conclude supported record necessary monitoring was to assure water necessary. that no such remand is Cf. in quality standards this case. De- Ass’n Home Builders v. National Wildlife, 127 at 2530. S.Ct. fenders of 3. Good Faith points although out that rejected pro- CTDEP In Islander East we cited some evi- significant to define a ‍‌‌​‌​​​‌​​‌​‌​​‌​​‌‌​​​​​​​​‌​​‌​‌‌​‌​​‌‌​‌‌‌‌​‌‍release posal raising dence concern that CTDEP deposits fluid over 24 inches reference to deny in predetermined had to certification approved nearly it had identical deep, case, affording pipeline proposal this with the definition connection Cross only perfunctory review. See 482 F.3d Company’s monitoring of its Sound Cable petition, latest On its CTDEP, drilling. Permit horizontal newspaper in the record several includes (Mar. 200102720-MG, B at App. No. reporting opposition continued articles 2002) (including within “conditions which pipeline, presumably to the Connecticut significant impact” on water constitute again has demonstrate CTDEP quality “[djrilling depositional depths fluid It further good faith review. denied exceeding] ... 24 inches at the interface attempting to points to CTDEP actions fence”). In contrast with the containment conducting geo- East from block Islander experience adverse with with CTDEP’s faith. logical surveys as evidence of bad which, pipeline, aspects Iroquois of the not persuaded. We are noted, a rational basis prоvided we have survey allegation raises some While reject simi- agency subsequently for the concern, predate actions the first deni- proposal, aspects lar of the Islander East event, and, any fully are not devel- al found no adverse effects aris- the CTDEP Moreover, surveys relate to a oped. ing out of Cross Sound Cable’s horizontal not relied on this ground for denial drilling rejection of Islander support Indeed, supra at 161-64. On 24-inch decision. See threshold. record, allegation insufficient East with Cross Sound we deem provided Islander respect capricious. to the it is not Be- bad faith to establish not, hereby that it cause we conclude 2006 Denial. deny petition review. denying no the con there is While strong opposition tinued III. Conclusion residents and voiced some Connecticut summarize, To proposed Islander East’s officials, analysis an of a agency’s where gas pipeline installation of a natural from is detailed and application controversial York Long Connecticut to New across Is- thorough, the case with the CTDEP’s as is comport land Sound with must various Denial, readily not we will conclude statutes, including Clean Water Act. by that it is infected bad faith. While the requires The Clean Act Water Islander might made more CTDEP have ef procure East to from the CTDEP a certifi- seeming discrepancies to resolve fort cation that the proposed will com- East’s proposal omissions Islander ply quality with state water standards. denial, issuing challenged its fail before its supports Record evidence the CTDEP’s ure to do so does not demonstrate bad finding techniques that various to be em- capricious or an arbitrary faith deci ployed by in installing Islander East As we plain sion. made Islander East proposed I, pipeline would violate case, state water even as we ordered remand quality by eliminating signifi- standards a was it “Islander East’s burden to demon cant area of waters nearshore from their strate its entitlement to favorable action shellfishing. and designated use of ... application.” on its 482 F.3d at 104. record, On such a cannot we conclude that “adequately Because the CTDEP has now deny CTDEP’s decision to Islander aspects ... important considered] of the id., compliance East a issue,” certificate of was “arbi- supported its conclusion trary, capricious, discretion, an abuse of carry that Islander East did this bur otherwise not in evidence, accordance with law.” 5 with record Islander den East 706(2)(A). U.S.C. peti- Islander East’s point must political to more than continued tion for review is opposition for us to find bad faith. Denied. In express so holding, no view as RESTANI, JANE Judge, dissenting: A. challenged

the wisdom of the denial or of a statutory whereby I single respectfully scheme a state majori- dissent from the agency effectively an energy pipe- ty’s vetoes Depart- conclusion that Connecticut line approval that has secured from a host ment of Environmental Protection’s (“CTDEP”) other is, federal agencies. and state It denial second of certification all, after has Congress “provide[d] for proposed natural gas CTDEP, states with option being deputized plan, Quality see Water regulators” of the Clean Water Act. Application Is- Certification No. 200300937- SJ, (Dec. lander Co., at 90. If Congress Pipeline F.3d LLC 2006) (“2006 agree Denial”), were to with Islander East that the was supported public interests proposed explanation furthered reasoned based on record pipeline outweigh Connecticut’s water evidence and or capri- was concerns, Congress could I particular, majority’s consider cious. note the whether to dissolve the federal-state part- acknowledgment that CTDEP failed to ex- nership time, it plain created. such properly Until how- its dismissal of an expert ever, this charged report court with reviewing especially is sedimentation — agency’s light state denial to ensure admission that re- CTDEP’s The mathematically particular project proposal. text of upon was port relied’ give open-ended is to agency’s the af- central task significantly overstated flawed improperly meaning particular proposed criteria that CTDEP fected area —and drilling parties neces- rejected project, providing ap- participate the fact that CTDEP in the despite sary guidance regula- plan, nearly for reference provided proved tory process. I dis- prior project. from a plan

identical Denial, however, In the 2006 majority’s with the characterization agree limita- quantify specific declined to what harmless, and find of these errors as have tions would to be met to find evidence to otherwise there not reliable proposed project consistent with decision. support CTDEP’s CTWQS. minimum stating Rather than thresholds, a of pointed CTDEP to series of the 2006 Denial I. Review likely potential impacts environmental correctly the majority that The states CTWQS. that it contends would violate the arbitrary or is whether CTDEP was issue court, powerless to the As a we are set the finding that capricious im- quality on water specific limitations in damage inconsis- pipeline would result the pacts that would be inconsistent with Quality Connecticut tent with the Water CTWQS. majority correctly (2006 52-53.) currents alone. Denial at finding roneous of 86 acres remains the of Roberge Report, On the basis the only finding us, along with Respon- before CTDEP a of provided measurement the actual dents’ assurances that the amount impacted by area be that would sedimenta- of sedimentation does not matter. As we “ tion. ‘may stated appellate post accept counsel’s hoc ration- Roberge

CTDEP now admits that the for agency alizations action. It is well incorrect, Report’s predictions are over- that an agency’s established action must stating dispеrsion of the extent sediment all, if upheld, be at basis the articulated by more than a factor of four. According ” agency by the 482 brief, itself.’ F.3d at 95 Respondents’ Report to the Roberge Farm, (quoting State 463 U.S. at 103 that of should have stated the area sedi- 2856). acres, S.Ct. dispersion ment would be 18.5 86. (Compare Denial at with strong CTDEP’s on the reliance errone- 24.) Resp’ts’ Br. 51 n. This is far closer to ous sedimentation as a findings basis for predicted the amount Report, the ASA error, denial seems far from harmless con- which estimated acres of sediment dis- trary majority. to the assertion of the Be- (See id.; 4.) persion. Report ASA at cause CTDEP did not consider the effects Despite fact the CTDEP should of sedimentation drastically under the re- have a significantly adequately considered reduced es- duced calculations explain area, timate of Respon- rejection the sedimented its of Report the in light ASA dents now contend that similarity calculations, “[t]he error one to the new the of degree,” that any area of sedimen- 2006 Denial’s with respect conclusions tation that interferes with shellfish har- the effects the dredged sedimentation vesting CTWQS. is inconsistent with capricious. the section were 1. "unacceptable impact CTDEP "unacceptably changed cites reduced and as a indirectly through benthic ... habitats sedi- substrate, change result of the in benthic in- mentation,” project states that the will (2006 cluding 80.) sedimentation.” Denial at "biological integrity” cause the area of the (See 70.) rock backfill. Denial at Regarding B. CTDEP’s Conclusions , Similarly, repeatedly 2006 Denial cited of Backfill Use predators concerns that would also colon- Engineered Backfill rocky ize an area filled with backfill. expressed also concern The 2006 Denial (Id. 66, 68.) Although at record shows placement engineered backfill over the two-layer sandy the use of backfill trench, finding that dredge there into predators prevent from undermin- discrepanсies the rec- significant were (see colonization, ing April shellfish Min- composition of regarding proposed ord 1), explain why utes at CTDEP failed backfill, and that even if shellfish could indicating did not the evidence consider backfill, rocky preda- return to shellfish negotiated changes composition in the co- also particularly starfish —would tors — backfill, Islander East’s (2006 66-68.) Denial at lonize area. potential effects thereof. respect composition, to the backfill With that an specifically the 2006 noted Denial Proposed Spoil Use Some Native “ use of expert report ‘[r]oek called Denial, the 2006 CTDEP found less than inches in diame- gravel ” “suggestions regarding (id. ter,’ Environ- (quoting at 37 TRC ... disposal options appear to retreat from Benthic Corporation, mental Evaluation of during reached conclusion East’s Associated Impacts by seeking technical to use discussions” Construction Tech- Modified Offshore spoil in the backfill area. some native (2003) (“2003 Report”))), TRC niques (2006 37.) expressed Denial consultants that Islander own proposal concern that the to return excess the use of contain- recommended backfill area contradict- spoil to the HDD exit was than 2 ing “mostly gravel, no more inches prior ed statements to by Islander East’s (id. sand,” (citing and diameter coarse slow,” CTDEP, be would “inefficient Aldrich, Inc., Engi- on Haley Report & “increase sedimentation.” would (2003)).) at Study Be- neered Backfill omitted).) (2006 (quotations Denial at 38 grain the nature or of the mate- cause size uncertain, CTDEP rials were concluded however, to acknowledge, CTDEP failed speculate it to what fauna that could as spoil fill that use some native to plans to (2006 to inhabit the area. might be able since the pit the HDD exit had existed 38.) at Denial (See Project beginning the process. of 2003) (stat- (Mar. 4, Meeting Minutes at The demonstrates that the 2003 record dispose to ing that Islander East intended Report was issued before Islander TRC 25,000 yards of of of a maximum cubic proposal, had finalized its backfill East sediment, “possi- and that it was dredged the later does not contradict de- therefore spoil the HDD exit hole ble to return to as of the intended backfill a scriptions to spoil top dressing to material use layer layer of of rock covered sand. backfill”); at (See (issued Minutes engineered April the February Report 2003 TRC 2003).) (stating spoil placed could over a com- that be provided 15, 2003, fact pit).) backfill rock laid in the HDD exit The plan April on pleted to use a prepared that Islander East was subsequently referenced the use two (See dredged material limited amount of layers Multi-Agency backfill. the 2003) at with its contention Min- therefore not odds Meeting (Apr. (“April (2003).) Sound at 78-79 the it Although why drill assumed that fluid would not comparable utility a Cross-Sound Cable is disperse before the of the suffocation shell- project Sound, Long in Island populations installed prior fish not to removed con- recently more than either the Riv- Hudson struction. majority While the indicated er Iroquois Pipeline, cables or the CTDEP that might reasonable minds on differ the explain did why not it implications record, discounted record of the evidence on the plowing evidence that the resulted little it is not the responsibility of the court to or impact, why no or the implica- Cross-Sound comb the evidence to derive such Cable’s trench construction distin- was where agency neglected tions the to do so. CTWQS, however, majority 2. The “[ejxisting finds a the desig- distinction on both CTWQS case, grounds protected. “in contrast to this where nated uses” are 1. In addition, pipeline the found that CTDEP Islander East's clear is not from the record project long-term potentially would cause a shell- loss of the affected areas in this case had fishing cultivation, existing recently beds foreseeable future been used shellfish use, project implicated responsibility the Cross Sound Cable is it nor the of the court to drаw expected dormant that were to re- beds such the distinctions from evidence where the Maj. Op., main agency neglected so.'' ante at 158. the Under do so. to in- proposed drill East’s alternative means of addition, assuming that even dredged to the area. quickly enough stalling pipeline the disperse fluid would suffocation, dis- CTDEP avoid shellfish proposal, In its modified mit- East’s proposed all of Islander missed provided stationary barge that a could be (See, e.g., plans. and remediation igation necessary to the used assemble 58.) to at CTDEP refused Denial mileposts 10.9 and 12 of between instead plan East’s containment consider Islander barge a into laying pipe directly the from that Islander East’s and claimed (See dredged the trench. Islander to plan failed operations monitoring Pipeline Project, Application Permit for: “sig- of definition appropriate include an Certificate, Quality 401 Water Marine by of drill fluid. As noted nificant release” 9.) Pipeline Methodology 1, Installation however, approved a majority, CTDEP method, Following “a this winch mounted in a moni- definition used nearly identical on construction vessel at the HDD exit by the plan provided Cross-Sound toring pull strings to two hole will be used to CTDEP also failed Company. Cable approximately long, each one mile pipe, alternative why the use of identify reasons to exit hole.” laybarge near the in the technology acceptable was HDD 1.) (Id. Thus, string HDD pipe “[t]he Project, here. It but not Cross-Sound by laybarge be installed either [could] identify to responsibility was CTDEP’s by operations by remaining standard treat- justify its inconsistent reasons a.,winch stationary [using] mounted so.3 plans, and it failed do of the ment pull ... separate vessel off to the HDD exit hole.” laybarge Finding An- E. CTDEP’s (Id. 9.) CTDEP did address Include the Corridor Would chor possibility using this method install Dredge Section pipe, and therefore overestimated Denial also concluded The 2006 impact twenty-five percent.4 by over cоrridor of project would create an anchor CTDEP’s conclusions on the basis these 4,045 acres, 1,120 which approximately unsupported. calculations5 are therefore potential lease shellfish are areas, acreage characterized Failure to Miti- F. CTDEP’s Address (2006 “unacceptably large.” CTDEP as gation Measures 80.) 41, 70, As noted Denial at investigat- Finally, should have erroneously included in majority, CTDEP possibility imposing ed the acres in nearshore conditions calculation 322.4 ar- impacted the remediation incorrectly requiring assumed to waters that were plowed sections. dredged in the subject to anchor strikes and cable eas refer- repeated makes address Record evidence sweeps, and failed to entirety its due to anchor strikes by majority, these be lost in noted the conclu- Also as (Id.) Subtracting 322.4 sweeps. the particularly troubling because the and cable sions are incorrectly be affected plan assumed to monitoring provided was acres Cross-Sound negatively impacted only acres leaves 797.6 Islander East. as a reference to We do not have CTDEP's shellfish habitat. 4,045 acres would 4. CTDEP calculated that impact. on that views by the the anchor corridor created fall within are, 1,120 according Respon- figures to barges, of the corri- 5.These but that acres dents, acreage impact only specific designated ''[t]he use of support an dor (See 70.) conclusion as basis [CTDEP's] mentioned in shellfishing. 2006 Denial at 52.) (Resp'ts' denial.” Br. the of this area would for CTDEP found that use plans to the use remediation agency’s expertise enees mandate to use its to (See, approval. to certificate conditions come to a supported by reasoned decision Council, e.g., Siting Conn. Cross-Sound substantial evidence.” 482 F.3d Co., LLC, Application for Cable a Certifi- The fact agency’s that the decision would Compatibility Envtl. and Public cate of have beеn regardless the same of the er- (Jan. 3, at 22 Need, Findings of Fact rors on the record is insufficient to show 2002).) The record also contains evidence that the arbitrary 2006 Denial was not and remediation meas- indicating proper that capricious, or that by the errors noted encourage shellfishing might ures interests majority were harmless. within anchor corridor. harvest addition, majority gives signifi- (See, Test., 98:6-12, e.g., Hr’g Tr. Williams cant credit to CTDEP for its inclusion of (stating fishing 19-20 around anchor more “voluminous” in information the 2006 possible buoys holes and “a Denial, stating panel that the reached its holes”).) buffer zone near the miti- Other in decision Islander East I “largely be- gation include notification im- measures cause of paucity of findings made construction, pending removal of shellfish the in CTDEP” the original determination. area, reseeding from the work in beds Maj. Op., ante at 151. Our review is not expense, the work area at Islander East’s respect relative with prior to the CTDEP’s (See pipeline surveys. and provision of findings reviewed in Islander East Project, Pipeline Response Islander East majority’s determination Information, Additional Request for Im- analysis issued more detailed in the 2006 (2003).) pacts Analysis Report at 36 Al- Denial does not agency’s indicate that the possible though failure address miti- conclusion arbitrary still capri- gation measures itself does not render Although cious. a lack of record evidence arbitrary capri- CTDEP’s conclusions may certainly lack support indicate a cious, record, based on this CTDEP should agency’s findings, the converse is not possibility have addressed the condition- necessarily true. It is insufficient for an ing on remediation approval of anchor agency to provide “voluminous” informa- topographical strikes and irregularities, in support tion of its conclusion where such possibility of providing surveys erroneous, information is dismissed shellfishing interests that would allow for adequate without explanation, or harvesting within the

renewed аnchor cor- fully explain fails to agency’s decision. ridor. I do not wish to provide such an incentive here. While the 2006 Denial provides a III. Conclusion lengthy explanation reasoning of the may While there have been reasoned deny led CTDEP to WQC, approach that CTDEP could have taken to the inconsistencies reasoning, justify its conclusion based on the evidence CTDEP’s failure to consider relevant evi- record, available on the CTDEP’s inconsis- record, dence on the and the manifest tent treatment of evidence continues to errors upon by evidence relied suggest that its denial of certification for CTDEP, leave me with no choice but to the proposed pipeline may have been a conclude that the 2006 Denial is foregone conclusion. As we indicated capricious. I, “[a]ny effort by the CTDEP to pursue ‘strategy’ justify

foreordained opposition to the

would be incompatible reviewing The notes CTDEP, Quality Stan- Water Standards. depends such a determination on sci- that (effective 2002) 17, (“CTWQS”). Dec. dards policy judgments entific evidence and best CTWQS quality water surface Under expert agen- to consideration of left two, “[ejxisting and des- standard number Ass’n U. cy. See Motor Vehicle Mfrs. of necessary ... ignated uses water Co., S., Mut. Inc. v. State Farm Auto. Ins. be maintained protection [are] for their to 48, 2856, 29, 103 S.Ct. 77 L.Ed.2d 463 U.S. CTWQS of 1. As protected.” part at (1983). agen- it is Although 443 within the EPA re- antidegradation policy, at cy’s authority to determine a level which Quality to publish Water quires states unacceptable, it be harms are must such (“WQS”) that maintain a “level Standards “an action reemphasized agency’s necessary protect ... to of all, if at on basis upheld, must be 131.12(a)(1). existing 40 C.F.R. uses.” itself.” Islander articulated responsibility apply has The state Pipeline Dep’t Envtl. East Co. v. Conn. of in the any quantitative provided criteria (2d Cir.2006) (“Is- Prot., 482 F.3d WQS, descriptive characteris- as well as omitted). ”)I Our (quotations lander v. County tics. No. 1 PUD Jefferson of hold CTDEP to its own reason- task is to 700, 714- Dep’t Ecology, 511 U.S. Wash. of ing judgments. (1994). 128 L.Ed.2d S.Ct. Act The Water envisions Clean of CTDEP’s Conclusions II. Review may cri- WQS non-quantitative list state’s teria, which designations, such as use Regarding A. CTDEP’s Claims Sedi- into limita- specific “must translated be Dredge in the Section mentation Id. projects.” for individual tions of sedi- potential treatment Thus, CTDEP’s free while a state is S.Ct. dredge in the section of impacts mentation open-ended criteria impose narrative or con- the most serious project presents criteria does WQS, in its use such cern, particularly because sedimentation obligation to free the state from its for denial two grounds con- cited impose specific limitation within the 52.) finding (Resp’ts’ conclusions.1 In Br. is a surprising This CTDEP’s four reasoning area of natural both claim. CTDEP’s refers to a significant that “a sedimentation, shellfishing beds would prime “significant specifi- habitat and area” of (2006 exceeding sedimentation exposed cally, 50-51, be Denial at 86.23 acres. 55.) periods Further, and for extended any normal levels if amount sedimenta- time,” heavily expert relied on CTDEP tion would inconsistent record, Roberge finding studies on the CTWQS, necessary would not been have (John LLC, P.E., Roberge, Po- Report, C. go lengths CTDEP to such to dis- Impacts tential Which Sedimentation ASA Report’s miss the conclusions. More (2003) (“Ro- Dredging Could Result importantly, there is no indication in the “to be reliable in berge Report”)), the most actually record considered amount extent of predicted terms of whether 18.5 acres of sedimentation would (2006 53), dispersion,” sediment Denial significant impact resulting par- be a (Applied dismissing Report, ASA tial of an It loss use. is not the Associates, Inc., Science Results role the court such a to make determi- Simulations, SSFATE Nearshore Model nation CTDEP’s behalf. See Ace Mo- (2003) Connecticut, Long Island Sound Freight, ICC, tor Inc. v. 557 F.2d (“ASA because it on tidal Report”)), relied (D.C.Cir.1977). admittedly CTDEP’s er-

Notes

Notes utes”).) Denial, to exclu- however, using dredged sediment the contin- that The would not engineered to an all- sion of backfill to refer to concerns related uеd Thus, guishable proposal.2 in addition to failure from Islander practical. East’s changes in com- negotiated responsibility the It is our to search to consider backfill, engineered CTDEP ne- record for ‍‌‌​‌​​​‌​​‌​‌​​‌​​‌‌​​​​​​​​‌​​‌​‌‌​‌​​‌‌​‌‌‌‌​‌‍such As we position of distinctions. noted fully “it glected consider record evidence of in Islander East was Islander for use of na- options some burden demonstrate its entitlement WQC application, in the backfill area. action on its spoil tive favorable it adequately was CTDEP’s burden [but] Regarding the Claims C. CTDEP’s aspects consider important issue.” Plow Section 482 F.3d at 104. found 2006 Denial that anchor The Regarding D. Conclusion CTDEP’s strikes, plow impacts sweeps, cable Proposed Use of plow of a resulting the use subsea HDD floor, disrupt 12 would the sea after mile (2006 47.) Although uneven. Denial rendering CTDEP found that shellfish in support drilling pit, its conclusion disturbed exit or in an area affected frae-out, irregu- into exposure sediments settle surface would die of to drill fluid, larities, projects referenced two Denial cite did not record long-term reportedly indicating that have suffered energy evidence that wave fluid, Iroquois Pipeline disperse scarring: might between or address other Island Long Connecticut and and a series suggesting dispersion record evidence on Although electric cables installed the floor of occur. does there is evidence on 47-48.) {Id. River. indicating Hudson the record releases drill address, however, CTDEP failed to likely isolated, record fluid would be “small and (Garrett regarding the installation of the or rapidly dissipate,” evidence ... Group, Cable, Ltd., showing that it result- Preliminary Report Cross-Sound on Antici- ed in impact pated little no shellfish habi- Biological Impacts Associated with tat. on Long Proposed Task Force Island Pipeline {See Pro- Sound, Comprehensive ject, Assessment and through the Long Nearshore Area of Report: Branford, Environmental Resources and (May Island at 10 CT Sound— 8, 2003)), Energy Long Island explain 2006 Denial does not Infrastructure

Case Details

Case Name: Islander East Pipeline Co., LLC v. McCarthy

Court Name: Court of Appeals for the Second Circuit

Date Published: May 2, 2008

Citation: 525 F.3d 141

Docket Number: Docket 06-5764-ag

Court Abbreviation: 2d Cir.