Thursday, February 13 was an anxious day. I kept checking the FERC website to see if the Commission had announced its final order on Jordan Cove. But…nothing.
Supposedly, several media outlets had confirmation that FERC was definitely going to announce its decision on the 13th. But late that day, Jordan Cove appeared on FERC’s February 20 agenda. According to an Associated Press story that has been republished by several media outlets, FERC spokeswoman Mary O'Driscoll “said the commission is still considering records in the case.”
There was a lot of activity on the Jordan Cove docket this week, plus a couple of very interesting and well-timed news stories. Could these late developments have convinced FERC to hit the pause button?
We may never know, but in any case, here is one of the most intriguing items from last week.
Oregon to FERC: We really mean it
On February 10, Richard Whitman, Director of the Oregon Department of Environmental Quality, submitted a letter to FERC stating that DEQ “wishes to bring several matters to your attention, [so that] the Commission has a clear understanding of the record concerning ODEQ before FERC makes its final decision.”
Way back in May of 2019, DEQ denied Jordan Cove water quality certification, which is required under Section 401 of the Clean Water Act. Whitman's letter reminds FERC of this fact, then goes on to say that, by the way, the company never bothered to submit a new application.
Whitman writes that his agency is not aware of any project where FERC has made a final decision without an application for water quality certification having been submitted. He writes, “ODEQ is concerned with the potential authorization of activities that will affect water quality before an application for 401 certification has ever been filed.”
The letter also lists a number of errors in FERC’s Final Environmental Impact Statement that “require correction.”
It’s hard to not interpret this letter as a kind of warning. The missing DEQ application is just one example of how Pembina has failed to provide complete, detailed, and otherwise satisfactory information to meet the requirements of state and local permitting agencies.
In fact, Whitman’s letter follows a set of comments submitted collectively in late December by several Oregon agencies, including Oregon Department of Fish and Wildlife (ODFW), the State Historic Preservation Office (SHPO), and Department of Conservation and Land Development (DCLD). In their letter, the agencies reiterate concerns they had expressed in nearly 250 pages of comments on the draft Environmental Impact Statement (DEIS).
Basically, the agencies are telling FERC, uh, remember those concerns we brought up? They still haven’t been addressed in your Final Environmental Impact Statement, or FEIS. These issues include—among many others—the cumulative impacts of modifying the channel in the Coos Bay estuary, the cumulative impacts of pipeline construction and the use of eminent domain on landowners along the pipeline route, inadequate mitigation of impacts to fish and wildlife, impacts to cultural resources, and how an earthquake or tsunami would impact the LNG terminal.
It’s fair to say the State of Oregon is ready to stand its ground if FERC approves Jordan Cove. Even Governor Kate Brown, who has been frustratingly neutral on the subject of Jordan Cove, told the Associated Press that “she ‘would consider all available options’ if the federal government tried to preempt state permitting processes.”
Which way will FERC go?
With so many strikes against it, it’s hard to image FERC approving Jordan Cove. If they do, the Commission risks, as US Senator Ron Wyden warned in his own letter, appearing biased. In his letter, which was sent to President Trump on January 27, Sen. Wyden points out that there have been two vacancies on the five-member Commission for five months, and he urges the President to fill them before FERC makes a decision on Jordan Cove and other “complex and often controversial projects.”
"Otherwise,” he writes, “any decision over the proposed Jordan Cove Energy Project could be interpreted as lacking a full, fair consideration and therefore inherently political.”
One wonders if the traditionally bipartisan Commission—which currently includes two Republicans and one Democrat, all appointed by President Trump—may be facing an unprecedented amount of pressure from the Trump Administration to approve Jordan Cove and other fossil fuel projects.
Will that pressure "trump" all of the well-documented arguments against the project? And will we find out on Thursday? According to the AP story referenced at the beginning of this post, FERC spokesperson O’Driscoll was fairly tight-lipped: “The Commission will meet on Feb. 20. The item is on the agenda. That’s all I can say.”
And all I can say is, at this point, it could go either way.