Oregon steps up legal battle over FERC orders authorizing Jordan Cove LNG

Washington — Oregon state agencies have joined the legal fight against the Federal Energy Regulatory Commission's conditional approval of the Jordan Cove LNG project. They contend that the commission's order violated plain language of the Clean Water Act and Coastal Zone Management Act and suffered from numerous other procedural and substantive flaws.

The agencies filed a request on Monday for rehearing of FERC's order approving the project and the Pacific Connector Gas Pipeline, as did a broad coalition that included environmental groups landowners and others.

Oregon agencies joining in a request for rehearing included the Oregon Department of Energy, Department of Environmental Quality, Department of Fish and Wildlife and Department of Land Conservation and Development.

The challenge, lodged on multiple grounds, contributes to signs the state will be fighting the project, adding its legal muscle to that of environmentalists, landowners and others aligned in trying to stop it.

The state's challenge covers a lot of ground, touching on water quality reviews, air impacts, habitat impacts, endangered species impacts and mitigation of greenhouse gas emissions, as well as attacking FERC's economic analysis.

ECONOMIC ANALYSIS

The challenge contends that FERC's finding that the project would benefit American gas producers is unsupported because FERC does not make any effort to quantify the amount of American gas that will likely be transported, and because there is nothing in the certificate that requires transport of American gas.

Of note, the state contends that FERC impermissibly issued the authorizations notwithstanding the state denial of a water quality certification related to a US Army Corps of Engineers permit, and notwithstanding the applicant's failure to file a water quality certification for the FERC authorizations.

"The plain language of the CWA is clear. The state must issue a 401 certification before FERC can issue a Section 3 authorization or a Section 7 certificate," the Oregon agencies asserted, in language setting up a legal struggle with FERC over the bounds of state and federal authorities. "One of the states' most significant rights under the Clean Water Act is the authority to issue a certificate beforethe relevant federal permit or license is issued."

COALITION FILING

Separately, multiple parties joined in the rehearing request filed by Sierra Club, Niskanen Center, tribes and others. The lengthy list of legal flaws that the coalition asserted included, among other things, gaps in the public interest determination to support the project or requirements of the Fifth Amendment's property-takings clause, cultural resource and endangered species review shortcomings, procedural failures in the FERC review, and an inadequate look at GHG emissions.

Jordan Cove has also asked FERC to change some aspects of its order, including one affecting the timing of future contracts for the pipeline capacity in relation to LNG contracts.