2005-11-10 / Front Page

LNG facility lawyers call town’s legal brief ‘improper’

By Dotti Farrington

LNG facility lawyers call town’s legal brief ‘improper’

Jamestown’s legal brief against the proposed liquefied natural gas facility in Fall River, Mass., as well as the joint brief filed by other Narragansett Bay towns, “constitute improper pleadings . . . and should be rejected,” according to Weaver’s Cove, the Hess company seeking to build the LNG terminal.

Filed last week with the Federal Energy Regulatory Commission, the Weaver’s Cove position paper claims the towns’ documents are improper “under the FERC rules of practice and procedure.”

According to Baker Botts, the Washington, D.C., law firm representing Weaver’s Cove, the filings are seeking “to participate in the proceedings one and a half years late” and about three months after the FERC’s order authorizing Weaver’s Cover to construct, own, and operate a LNG terminal and associated lateral pipelines in Fall River.

Jamestown’s brief was written by Town Solicitor Lauriston Parks. The brief by the other towns — Middletown, Portsmouth, Tiverton and Bristol — was prepared by a Washington, D.C, law firm for the town of Fall River, for which the other towns agreed at the urging of state Attorney General Patrick Lynch to pay up to $25,000 for those legal services. Parks has not yet submitted his bill, he has said that it will be a “few hours” at the usual rate of $100 an hour.

Lynch criticized Jamestown for not joining the other towns and suggested that Jamestown does not really oppose the LNG proposal. Jamestown officials verbally chastized Lynch for his criticism in light of the island’s lead in other antiLNG venues, and the town’s need to abide by its own rules, which require competitive proposals for services from professionals, including attorneys.

The Weaver’s Cove attorneys said the briefs from Jamestown and the other towns “add absolutely nothing new to the existing record.” The LNG lawyers also said “the filings are in reality untimely pleadings by non-parties, are procedurally flawed and should be rejected.”

Weaver’s Cove is contending that the form of the briefs is “a form of pleading which (the FERC) rules do not recognize. Presumably, the towns style their pleadings as such to avoid explaining why they should be entitled to comment at this late date despite their failure to intervene and comment in the proceeding in a timely manner.”

The LNG lawyers contend that the FERC “precedent makes clear that styling a pleading as an ‘amicas brief’ does not confer party status upon the towns. Despite this, the towns . . . demand that (the FERC) review information (it) already has reviewed and considered before it issued its order. The towns, however, cannot escape the unavoidable fact that they may not intervene or comment at this late date in order to seek affirmative relief.”

The LNG lawyers are saying the towns “must set forth requests to intervene in formal motions. The towns have not filed such motions, and they have made no attempt prior to (the FERC’s) order to file such motions. Therefore, as nonparties, the Towns are barred from filing their pleadings” in the Weaver’s Cove case.

“Further, the towns’ pleadings appear to be, in reality, requests for rehearing. To properly file requests for rehearing, the towns need to be parties to this proceeding. Even if they were parties, however, they would be prohibited from filing requests for rehearing at this late date,” the Weaver’s Cove attorneys argue. They claim the filing deadline was Aug. 15.

“Even if the towns had complied with (the FERC) rules and accompanied their briefs with motions for leave to intervene late, clearly such motions could not be granted under the circumstances present here,” the LNG lawyers wrote. “Only extraordinary circumstances (would) justify favorable action” by FERC, the lawyers argue. The towns have not claimed unusual circumstances, they contend.

The lawyers claim the towns’ efforts “unsubstantiated opinion that the (Fall River proposal) was unfavorable to their interests. The towns were moved to make this filing because of the unconscionable indifference displayed to their interests, and to the health and wellbeing of their citizens. In effect, the Towns argue that they should be allowed to intervene, after sitting on their rights and failing to act prior to (the deadline) because they now feel that their interests were not satisfied in the previous two years that the Weaver’s Cove project has undergone extensive processing and review, according to the LNG lawyers.

“The Towns were well aware of the proceeding and therefore, they were well aware of the possibility (of the FERC approval); certainly they have not attempted to show otherwise. Nor have they attempted to explain what it is in their new pleadings that is new to (the FERC) or that otherwise adds to an already substantial record,” the LNG lawyers maintain.

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