FERC Punts in Wake of DLCD Denial
In yet another dramatic twist, the Oregon Department of Land Conservation and Development (DLCD) sent Jordan Cove a letter yesterday, denying the project an important certification the day before the Federal Energy Regulatory Commission was supposed to make its final decision on the project.
DLCD is the state agency charged with determining whether a project that requires federal certification is “consistent” with the state’s Coastal Management Program.
In his agency’s letter, DLCD Director Jim Rue stated: “After careful review of the proposed project, in conjunction with receiving extensive public comment, and coordination with coastal partners, DLCD has determined that the coastal adverse effects from the project will be significant and undermine the vision set forth by the OCMP and its enforceable policies.”
The letter continues: “The project will negatively impact Oregon’s coastal scenic and aesthetic resources, a variety of endangered and threatened species, critical habitat and ecosystem services, fisheries resources, commercial and recreational fishing and boating, and commercial shipping and transportation, among other sectors critical to the state.”
A federal agency cannot grant a permit until the state has concurred with the applicant’s certification, a point which Rue repeatedly makes in his agency’s letter:
“DLCD objects to JCEP’s consistency certification. As a result of this objection, the FERC and the [Army Corps of Engineers] cannot grant any license or permit for this project unless this objection is overridden on appeal by the U.S. Secretary of Commerce.”
The Secretary of Commerce, by the way, is Trump appointee Wilbur Ross, who seems biased toward the project. When NOAA released its biological opinion on Jordan Cove—roundly criticized for its inadequate review of the impacts of the project on endangered and threatened species and their habitats—Ross applauded the decision, stating that “NOAA’s opinion on Jordan Cove will pave the way for more American jobs and vastly expanded exports of domestically sourced liquified natural gas to prized Asian markets.”
And FERC says….punt!
Jordan Cove was on FERC’s meeting agenda today. Right away, Chairman Neil Chatterjee made his position clear, saying he would definitely be voting “yes” on issuing Jordan Cove a Certificate of Public Convenience and Necessity.
Chairman Richard Glick, a Democrat, said he would definitely be voting no.
It was up to the third and final Commissioner, Republican Bernard McNamee, to break the tie, but he wasn't ready to cast a vote.
“I’m going to be voting nay today on Jordan Cove, but that is not a hard nay.” McNamee said. McNamee, who recently announced he will not be seeking a new term once his first one wraps up this summer, explained that he wants more time to study the DLCD’s letter. “I want to see what the State of Oregon said, and I need that information to inform my decision, whether I’m ultimately going to vote for or against Jordan Cove.” McNamee added that he believes he will be able to make a decision by next week.
Chatterjee was sure to stress that this deferral is not a denial.
While frustrating, FERC’s delay isn’t an approval either, and that is good news for all of us who want Jordan Cove to die for once and for all.
CZMA, DLCD and OCMP
While we wait, let’s break down some of the details of the DLCD denial letter, starting with some acronyms.
The Coastal Zone Management Act, or CZMA, is a federal law that requires coastal states to review activities requiring federal agency authorizations. In Oregon, the coastal zone is defined as “the state’s coastal watersheds [extending] seaward three nautical miles and inland to the crest of the coast range.” Any activity that impacts any land or water use or natural resource within the coastal zone—even if the activity itself lies outside the zone—is subject to this review.
DLCD is charged with performing what’s called a “consistency review,” which evaluates whether the project complies (or is consistent) with the enforceable policies of the state’s approved Coastal Management Program (CMP).
The letter lists seven applicable Oregon policies and standards and how Jordan Cove has failed to meet them, either because a permit application was denied, withdrawn, or never submitted, or because consistency could not be established because of “insufficient information.”
In his letter, Rue quotes an earlier DLCD communication, reminding FERC that the agency had warned Pembina they had better get those permits, or they could not expect DLCD consistency approval:
“As DLCD explained nearly two years ago in a letter to Jordan Cove, “DLCD will not concur that a proposed project is consistent with the OCMP until the applicant has obtained the necessary approvals … for the project per OAR 660-035-0050 (4).7 ”
Coos Bay: A state treasure
DLCD reviews federal license or permit activities for coastal impacts in five categories:
· Natural resources
· Recreation and access
· Cultural resources
· Aesthetic resources
· Economic resources
Rue’s letter almost waxes poetic in its descriptions of Coos Bay estuary and its ecological and economic significance to Oregon. Coos Bay serves as a “base for commercial fishing jobs and revenue” and a “focal point for coastal culture” and is of great significance to Oregon Tribes, Rue writes. He also calls out several coastal communities notable for their "charm, historical significance, and natural beauty."
Much of the letter focuses on potential negative impacts of the LNG terminal and pipeline, including adverse effects to water resources, specifically the impact on the waters of the state related to land subsidence, soil erosion, and stormwater runoff.
Among the long list of potential impacts:
· The impact of dredging on water quality, including the possibility of stirring up toxic chemicals.
· How LNG vessel traffic might disturb marine mammals.
· The impact of pipeline construction on old-growth forest habitat.
· The “high likelihood” that construction would destroy cultural resources, especially sacred grounds—grave sites and buried villages, as well as traditional cultural plants, animals, fish and marine life.
· The impact of the 500-yard security zone—required for LNG carriers—on recreational and commercial boaters, given that “the estuary is rarely, if ever, wider than 1000 yards in the vicinity where the LNG ships would use the estuary.”
· The risk of building the LNG facility in a region prone to earthquakes and tsunamis.
· The risk of wildfires along the heavily forested and landslide-prone pipeline route, both during construction and while the pipeline is operating.
After listing these and many other concerns, Rue concludes: “As DLCD and other agencies have repeatedly observed, the applicant has failed to provide information regarding proposals to mitigate numerous impacts or whether and how such mitigation might work.”
We hope McNamee studies this letter thoroughly and carefully. If he does, he will come to the inevitable conclusion that he should vote no on Jordan Cove next week.