With FERC Decision Looming, Pembina Pulls Back
Updated: Feb 5, 2020
Everyone is wondering: What is Jordan Cove’s game?
Last week, we blogged about the letter that Vicki Walker, director of the Oregon Department of State Lands, sent to Pembina/Jordan Cove, denying their request for yet another deadline extension on the removal-fill permit. DSL was set to make its decision on the permit—required for Jordan Cove to dredge Coos Bay or remove material from any lake, river, stream, or wetland—on January 31. But on January 24, Jordan Cove withdrew its application for the permit altogether.
We thought our next post was going to dig into the details of the exchanges between DSL and Jordan Cove, but given this most recent development, we decided to focus instead on the question everyone is asking: What happens next?
Pembina never submitted a new application to the Oregon Department of Environmental Quality, which rejected its application in May of last year. This means the company is lacking key permits from state agencies with a final decision from the Federal Energy Regulatory Commission (FERC) looming.
Jordan Cove opponents, including landowners, have been feeling cautiously optimistic, and grateful to the state agencies for not rolling over for Pembina. Unfortunately, this probably isn’t the end of Jordan Cove.
FERC decision is nigh...maybe
FERC is expected to make its decision on the project on February 13. That said, they are not required to do so. Any number of things could happen. They could stick to their schedule and grant a Certificate of Convenience and Necessity. They could stick to their schedule and deny the Certificate. Or the date could pass without any decision at all.
If FERC does grant a Certificate, it will no doubt hinge on the condition that Jordan Cove gets the state permits eventually. Jordan Cove opponents are understandably anxious, and some worry that Pembina is banking on FERC approval to trump state requirements.
In an interview with Jefferson Public Radio, Susan Jane Brown, attorney with the Western Environmental Law Center, addressed this concern.
“The law is fairly clear that the federal government can preempt states on many issues involving the authorization and construction of a facility like Jordan Cove,” she said. “However, the law is also clear where there are also some areas where the state maintains pre-emminancy over those areas, and one of those areas is the Clean Water Act.”
“The Natural Gas Act is clear,” agrees Deb Evans, an affected landowner who, after 15 years, understands the intricacies of procedure when it comes to projects like Jordan Cove. “States are given the mandate in the Natural Gas Act to make decisions on 401 water quality certification, air quality, and Coastal Zone Management Act (CMZA) compliance.
For those who are interested, here is the specific language in of the Natural Gas Act, or 15 US Code 717:
(d)Construction with other laws Except as specifically provided in this chapter, nothing in this chapter affects the rights of States under—
(1) the Coastal Zone Management Act of 1972 (16 U.S.C. 1451 et seq.);
(2) the Clean Air Act (42 U.S.C. 7401 et seq.); or
(3) the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.).
Still, Jordan Cove opponents have good cause to be nervous. The Trump Administration has made clear from the beginning its intention to push Jordan Cove (and other fossil fuel infrastructure projects) through and has systematically pushed for new rules that limit or dismantle state authority.
In April of 2019, President Trump ordered the US EPA to amend Section 401 of the Clean Water Act to make it harder for states to block pipeline and other fossil fuel projects. On August 8, 2019, the EPA proposed a rule that would “replace and modernize the existing water quality certification regulations.”
Basically, the new regulation “streamlines” the Clean Water Act by requiring states and tribes to strictly adhere to the one-year deadline for making decisions, and by limiting the scope of their authority to issues related to water.
Not surprisingly, industry advocates applauded the new rule, while many states and conservation groups opposed it. Attorneys General from twenty-two states (including Oregon) plus the District of Columbia jointly submitted a letter opposing the new rule, and a consortium of science societies wrote their own joint letter criticizing it.
The Attorneys General protested several aspects of the proposed rule, including the directive that state agencies only consider discharges directly into water bodies rather than cumulative impacts of a project:
“…the proposed rule would unlawfully limit state certification authority to point source discharges from proposed projects into navigable waters, even though the plain language of section 401, as interpreted by the Supreme Court, authorizes states to ensure that the proposed activity as a whole [emphasis added] does not violate state water quality standards.”
But this isn’t the only attack on the Clean Water Act.
Regulations in retrograde
In what the Southern Environmental Law Center dubbed the “biggest loss of clean water protection the country has ever seen,” the Trump Administration finalized a rollback of President Obama’s Waters of the United States rule in January of this year. The Obama-era rule would have protected the smaller streams and wetlands that feed into protected water. Actually, Trump's rollback goes even further, stripping decades of water protections and leaving half of the country’s wetlands vulnerable. This of course has the fossil fuel industry partying like it's 1971.
There are plenty of outraged blog posts and news reports on President Trump’s new rule, so we won’t go into detail here, other than to speculate what the rollback could mean for Jordan Cove’s future.
In her interview, attorney Susan Jane Brown suggested that if Pembina were to receive a Certificate from FERC and reapply to DEQ and DSL, they may be gambling that Trump’s new rule, dubiously named the Navigable Waters Protection Rule, will “change the outcome at the state level.”
But if we can gauge anything from their actions thus far, the state agencies have no intention of ceding their charge to protect Oregon and her waters.