This is the blog I was hoping I wouldn’t have to write.
Yesterday morning, the Federal Energy Regulatory Commission, or FERC announced that it had voted to approve the Jordan Cove Energy Project. The vote was 2-1, with Commissioner Richard Glick dissenting. Landowners on the Pacific Connector Pipeline route were stunned to receive yet more bad news while the world is dealing with Covid-19 and Oregonians are hunkering down to protect themselves from the virus.
“Nothing like kicking people when they are down,” said Pam Ordway, a landowner from Douglas County. “Most of the landowners along the pipeline route are senior citizens in the high-risk group for coronavirus and already worried about their health and well-being. And FERC takes this time to approve a project that is going to just add to their stress and general sense of dread!”
Landowner Clarence Adams had this to say: “I am deeply troubled that FERC would put the interests of a heavily subsidized Canadian gas company over the well-being and safety of US citizens, both on the pipeline right of way and those impacted by the liquefaction facility on Coos Bay. Once again big business triumphs over the private citizen.”
What’s in the order
FERC approved the project despite the fact that Pembina has yet to secure three key permits from the state of Oregon.
During this very strange time, FERC has suspended with open meetings. The vote on Jordan Cove was released in a statement online. Afterward Chairman Chatterjee held a telephone press conference, during which he fielded several questions about Jordan Cove.
When asked about the state permits, Chatterjee responded that the Commission was "cognizant of the issues at the state level," but that "the majority of commissioners determined that it was a lawfully submitted application" and that the project record justified approval.
FERC’s order was published on its website later in the afternoon. The 203-page document provides and outlines dozens of conditions the project must meet before construction can proceed. Among these, the Commission requires Pembina to acquire and file “all applicable authorizations required under federal law.”
In other words, nothing can happen until Pembina gets 401 Water Quality certification, a removal-fill permit, “federal consistency” certification from the Department of Land Conservation and Development, and any other outstanding state and local permits. So that’s something.
Blue Ridge Variation chosen
FERC is also requiring Pembina to adopt the “Blue Ridge Variation” into the pipeline route, which the company has been fighting.
The 15.2-mile-long Blue Ridge Variation deviates from the proposed route at MP 11 and rejoins the proposed route near MP 25.580. This route is longer; it also traverses wetlands and fish-bearing streams and crosses more than double the number of private parcels and miles of private lands as Pembina’s preferred route. However, Pembina’s preferred route runs through old-growth forest, including marbled murrelet and spotted owl habitat.
The Commission admits there are trade-offs here, but argues that the impacts to landowners and “aquatic resources” are more easily mitigated than those to old-growth forest.
This dilemma represents everything that is wrong with the project. Oregonians shouldn’t have to trade private property rights for wildlife habitat.
Apparently, Commissioner Richard Glick agrees. In a written statement he outlined his reasons for opposing the project, asserting that the decision violates the Natural Gas Act and the National Environmental Policy Act because it does not adequately consider the project’s greenhouse emissions or its impact on endangered species.
In addition, the terminal and pipeline would “significantly impact” historic properties, short-term housing, and noise levels. Glick points out that the Order admits that some of these impacts cannot be mitigated, yet the Commission approved the project without showing how the proposed benefits will outweigh these negative impacts—an action which he calls not only irresponsible, but illegal.
Glick also questions the prudence of approving a project which triggers the authorized use of eminent domain for a project that, because of market conditions, may never be built.
“By issuing a Certificate for the pipeline needed to serve the LNG facility, the Commission is giving the developer the ability to immediately begin the process to take land via eminent domain when the future of the Jordan Cove LNG project – and perhaps other proposed LNG projects – remain very much in doubt.”
Implications for landowners
We will dig more deeply into the Order in a subsequent blog post, but here are a couple of big takeaways that should at least offer some temporary reassurance to landowners who may be facing eminent domain.
Pacific Connector can commence eminent domain proceedings in a court action if it cannot acquire the property rights by negotiation. But! The company will not be allowed to construct any facilities on easements unless and until a court authorizes acquisition of the property through eminent domain and there is a favorable outcome on all outstanding requests for necessary approvals.
The company is allowed to survey and designate the boundaries of an easement, but that’s it. They “cannot cut vegetation or disturb ground pending receipt of any necessary approvals” [emphasis added].
In other words, two big things need to happen before a single tree can be removed or trench can be excavated. The eminent domain hearing must take place, and Pembina must secure all permits and certifications from state and local agencies.
Hopefully neither of these will happen. But in the worst case, if Pacific Connector proceeds, the Order states explicitly that “the right of eminent domain does not authorize Pembina to 1) increase the size of its natural gas pipeline or facilities to accommodate future needs; or 2) to acquire a right-of-way for a pipeline to transport a commodity other than natural gas.
This should be of some small comfort to landowners who were concerned this easement would open the floodgates and essentially create a fossil fuel corridor that could be used to convey any number of products through their properties.
Reaction from elected officials
If there’s a silver lining, it was in the strong statements issued by Governor Kate Brown and US Senator Ron Wyden following FERC’s announcement.
Gov. Brown questioned the timing of the decision: “Given a national and state emergency, in which the federal government and its agencies are unable to fulfill their basic responsibility to keep citizens safe, it is stunning that the FERC moved forward on this decision today, approving the Jordan Cove project and Pacific Connector Gas Pipeline.”
She reiterated that Pembina has yet to secure several key permits from the state, and pledged to protect landowners:
“[U]ntil this project has received every single required permit from state and local agencies, I will use every available tool to prevent the company from taking early action on condemning private property or clearing land.”
Sen. Wyden, who up until this point has not taken an official stance against Jordan Cove, also issued a statement opposing the approval of the “controversial and complex” Jordan Cove project.
In his statement, Wyden cited actions by the Trump administration that have stacked the deck at the traditionally bipartisan FERC, where Republicans now outnumber Democrats 3 to 1.
He also criticized the Commissions for disregarding environmental concerns and local private property rights.
Wyden concluded by calling the decision a “clearly rigged process designed to advance Trump-McConnell corporate interests over Oregonians. All these violations are contrary to everything the Oregon Way stands for – fairness, transparency and accountability. I now have to oppose this project.”
Please take care of yourselves
Though disappointed, several landowners have vowed to keep fighting, all the way to the Supreme Court, if necessary.
Klamath County landowner Ron Schaaf likens it to a long ardous journey. "We've hit a bump; maybe we have some car trouble, but we're going to keep going. We're going to make it," he said yesterday after the FERC press conference.
We are committed to providing information about Jordan Cove, and especially, to impacted landowners. In the meantime, stay safe and healthy!