Jordan Cove LNG Terminal
On December 5, 2007, the Coos Bay County Board of County Commissioners formally approved a conditional use permit for Jordan Cove LNG. In order to be challenged a notice of intent to appeal, along with a $325 fee, had to be filed with the Oregon Land Use Board of Appeals within 21 days of the decision.
The Southern Oregon Pipeline Information Project, a nonprofit advocacy group formed solely to oppose the Jordan Cove LNG terminal and pipeline projects, filed the notice of intent Dec 26, 2007, exactly 21 days after the final approval was made. In a brief received by the Land Use Board of Appeals at the end of March, the opponents argued that not enough consideration was given to environmental concerns, preservation of Indian artifacts and the possibility that a pipeline to transport natural gas from the terminal might not be built.
The advocacy group argued that the 50-foot setbacks from Henderson Marsh, a salt-water wetland west of the project site, was insufficient. The brief goes on to argue that a wetland exists in the northwest portion of the construction area that will be used as a temporary grubbing stockpile. In its findings the county relied upon a map prepared by Jordan Cove Energy Project, and approved by the Department of State Lands. This second map did not show wetlands in the northwest portion of the project site.
The Coos County Board of County Commissioners can choose whether or not to have representation in the appeal process or to allow Jordan Cove LNG to handle the appeal process as an Intervener-Respondent.
Warrenton’s Decision Taken To LUBA
In early 2005 Skipanon Natural Gas applied to the city to redesignate 96 acres of the ESP as Especially Suited for Water-Dependent (ESWD) shorelands and rezone the same area as Water-Dependent Industrial Shorelands (I-2). The application also proposed redesignating approximately 370 acres of adjoining estuary as Aquatic Development and rezoning the same area Aquatic Development (A-1). The city planning commission recommended approval of the proposed plan and zoning map and text changes. After conducting a de novo hearing, the city commission voted to approve the requested amendments.
In 2006 People for Responsible Prosperity, Columbia Riverkeeper, David Shannon, Peter Huhtala and Bob Goldberg appealed the City of Warrenton’s approval of the requested amendments. Brett VandenHeuvel argued for the petitioners and Roger Alfred, Mark Whitlow and Perkins Coie, LLP argued for Skipanon Natural Gas LLC as the Intervenor-Respondent with the City of Warrenton declining to appear.
VandenHeuvel argued that the city “impermissibly deferred analyses” required under Statewide Planning Goals 9 (Economic Development) and 16 (Estuarine Resources), and failed to adopt adequate findings supported by substantial evidence demonstrating that the amendments comply with those goals. Vandenheuvel’s main contention was that the city erred in (1) failing to address the alleged negative economic impacts that the LNG facility allowed under the proposed plan amendments would have on commercial and noncommercial boating in the area, (2) deferring consideration of such negative impacts to the proceedings on a site review permit application for a specific LNG terminal. Specifically, he contended that federal agencies would impose exclusion zones around tankers and the facility itself, and that these zones could negatively affect fishermen and other boaters trying to use the navigation channel.
VandenHeuvel argued that the city was inconsistent in this respect, because it found that the proposed amendments comply with Oregon Statewide Planning Goals 9 and 16 based on consideration of the economic benefits that might result from a hypothetical LNG terminal, without considering the adverse economic and environmental impacts that might also result from an LNG terminal.
Alfred (for Skipanon Natural Gas) argued that while VandenHeuvel’s petition for review repeatedly referred to the requirements of Goals 9 and 16, the petition actually cited only a few passages from either goal, and two of the cited passages are “guidelines” that are suggested approaches rather than mandatory approval criteria. According to Alfred, the issues cited by VandenHeuvel either did not provide standards applicable to post-acknowledgment plan amendments, or were addressed by the city’s findings of fact. In addition, Alfred argued VandenHeuvel referred interchangeably to Goals 9 and 16, without recognizing that what may be a requirement under one goal was not a requirement under the other.
VandenHeuvel’s argument for Goal 9 revolved around the following guideline “The economic development projections and the comprehensive plan which is drawn from the projections should take into account the availability of the necessary natural resources to support the expanded industrial development and associated populations. The plan should also take into account the social, environmental, energy, and economic impacts upon the resident population.”
LUBA found that the guidelines to the goals are not mandatory but “suggested approaches” and dismissed the argument. Further, LUBA found that the City of Warrenton had addressed the concerns stated in its detailed findings of fact.
Goal 16 was VandenHeuvel’s next target in trying to prove the City of Warrenton’s non-compliance with land use laws. His petition included the guidance of Goal 16, stating that proposed alterations for estuarine resources should include: Social and economic characteristics, location, description, and the importance of the estuary to the economy of the area, including public access and existing transportation systems. This argument was also dismissed by LUBA.
The city reasoned that the terminal size is proposed to federal agencies and approved. The city concluded it was impossible for the city to determine what impacts, if any, exclusion zones and LNG tanker traffic may have on maritime traffic in the estuary. In any case, the city imposed a condition of approval requiring that prior to issuance of permits to develop an LNG terminal, the applicant demonstrate pursuant to development code standards – including standards that implement Goal 16 – that the terminal will not unreasonably interfere with public trust rights such as commercial or recreational boating. LUBA found that the City of Warrenton’s finding of facts adequately addressed the concerns and dismissed VandenHeuvel’s argument. LUBA affirmed (upheld) the City of Warrenton’s decision to make the land use changes.
Clatsop County’s Turn?
On March 20, 2008, the Clatsop County Board of Commissioners voted 4-1 to approve, with conditions, Bradwood Landing LLC’s consolidated land-use application for a liquefied natural gas terminal and related facilities on the Columbia River east of Astoria. rezoning 3 areas from Aquatic Natural (AN) to Marine Industrial (MI); one area from Aquatic Development (AD) to Marine Industrial (MI); and one area from Aquatic Conservation 2 (AC2) to Aquatic Development. The request for a conditional use permit to allow the proposed dredging in the AC2 zone was denied. Language related to scale of development as small to medium was not deleted from the Comprehensive Plan. Provisions of the LWDUO were amended to list, “cable, sewer, waterline, or other pipeline.”
In its finding of fact the Board of County Commissioners added two conditions: 1) Bradwood must have agreements with emergency service responders signed before the county will issue a development permit for construction. 2) A memorandum of agreement with Bradwood Landing LLC and NorthernStar Energy LLC and the County in which the company essentially agrees to honor the conditions, even if waived by the Federal Energy Regulatory Commission
At this time an appeal to LUBA has not yet arisen. VandenHeuvel is proposing to go a different route, with the Columbia Riverkeepers joining Columbia River Business Alliance’s Don West and NW Property Rights Coalition’s Marc Auerbach in drafting a referendum. The referendum will challenge the County’s decision to change existing land use laws which, according to the press release issued by Auerbach and West, prohibit major pipelines from being built across lands zoned for parks, open spaces and recreation. According to the news release a petition must first garner 607 signatures to qualify. If it meets the deadline the referendum would be placed on a September 16, 2008 special election ballot, which has been set aside as a potential election date.
In other LNG news, the staff of the Public Utility Commission of Oregon has recommended that The Commission should approve NW Natural Gas’ application for two interstate pipeline Precedent Agreements with Palomar Gas Transmission, LLC (PGT). NW Natural requests approval from the Commission of two interstate pipeline Precedent Agreements with PGT for the proposed construction and operation of a new pipeline that will be known as the Palomar Pipeline. This is expected to be a two hundred twenty (220) mile natural gas pipeline extending from Madras, Oregon to Molalla, Oregon (the “Eastern Zone”); from Molalla, Oregon to the Nehalem Interconnection in the vicinity of the Nehalem River proximate to the town of Mist, Oregon.
The staff found that NW Natural estimates a potential maximum increase in transportation costs of approximately $800,000. Because this is based on the rate cap, actual service cost on the Palomar Pipeline could result in less of an increase or potentially a decrease to transportation costs. Customers will benefit from the decreased dependence on [William’s] Northwest Pipeline (NWP), the increased reliability that the Palomar Project offers, and NW Natural’s ability to gain access to gas in different geographical supply regions of Canada or the U.S. Rocky Mountain region.
The proposed Palomar route will not be firmed up by PGT until it makes its FERC filing, which is not scheduled until the third quarter of 2008. Additionally, PGT does not expect to start working on project financing until late 2008, when PGT is closer to receiving a final FERC Certificate and has a better understanding on the final cost.
Related Story: How FERC’s authorization affects other state and local permitting actions
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