Jordan Cove Appeals Continue
Oregon's land use program can be the Achilles' heel of destructive projects. Vast multinational schemes backed by abusive national administrations can be blocked through application of local land use plans. So it may be with the proposed Jordan Cove LNG export facility, which Canadian multinational Pembina is attempting to situate on Coos Bay's North Spit. Oregon Shores is engaged in five different appeals of land use decisions by compliant local governments favoring Jordan Cove, four as lead appellant. If our appeals are successful, which is to say if the Land Use Board of Appeals (LUBA) finds in our favor and either "remands" or outright reverses the local decisions, Jordan Cove cannot move forward. (At least, not under the agreement on coastal governance that has prevailed for nearly 50 years, the Coastal Zone Management Act, which constrains the federal government to act with "consistency" in accordance with accepted state management plans. The Trump administration may seek to smash the CZMA to push Jordan Cove through--more on this in a moment.)
Oregon Shores has already succeeded in setting up one major roadblock to the Jordan Cove project, winning a reversal in the first appeal to be heard by LUBA. A hearing before LUBA in September should lead to decisions on two other appeals in October. Our attorneys are now preparing briefs due soon on the final two appeals. Collectively, these appeals cover a multitude of issues. We hope to win remands (where LUBA tells the local decision-making body that it has not demonstrated that its decision is in accord with its own comprehensive plan and with statewide planning goals, and must try again) or reversals (where LUBA determines that a project, as proposed, clearly violates land use laws and is therefore rejected in its current form) on numerous issues. By the time all the appeals are decided, we hope to have put up many roadblocks to this misconceived scheme, which would create the largest emitter of greenhouse gases in Oregon.
Late Friday afternoon, July 18, major news arrived: The Land Use Board of Appeals (LUBA) had found in Oregon Shores' favor in our appeal of one of the local land use decisions that would have permitted the proposed Jordan Cove LNG export facility and pipeline to go forward. The appeal was of a decision by the city of North Bend concerning transport and disposal of dredge spoils. Oregon Shores had arged that the decision failed to protect the bay's water quality, and violated existing management plans for the estuary. Not only did LUBA sustain our appeal, but the North Bend decision was reversed. This is significant. Usually, a successful land use appeal is "remanded" back to the city or county that made the decision for reconsideration. Outright reversals are rare, and indicate that the approval was not only wrong, but that the application must be completely rejected as violating basic land use law. Jordan Cove will have to start from scratch when it comes to seeking permission to dredge the bay and dispose of the spoils.
Oregon Shores was represented by attorney Ka’sha Bernard of the Crag Law Center, our partner in the Coastal Law Project. Attorney Tonia Moro, representing our local ally Citizens for Renewables, who intervened in the appeal, also participated.
LUBA agreed with our arguments on two key points: that the line carrying dredge spoils was not a “minor navigational improvement” allowing “water access” that could be approved for a portion of the estuary zoned for conservation; and that the dredge spoil offloading facility was not the kind of recreational dock that could be allowed under the Coos Bay Estuary Management Plan (incorporated within North Bend’s comprehensive plan). If Pembina intends to move forward, it will have to initiate an entirely new application with a new approach to handling dredge spoils that does not violate Oregon’s land use planning regulations.
We also won a remand on another issue, and Citizens for Renewables won several remands on other points.
On Sept. 1, LUBA heard our appeals that are grouped together as "Omnibus 1" and "Omnibus 2," which cover a range of issues involving the site for the terminal and the impacts on local fishermen and the local environment of the massive LNG tankers that would transit the bay and interfere with other activities. We were represented by Courtney Johnson and Meriel Darzen of Crag Law Center. We await LUBA's ruling, due soon.
Oregon Shores continues to pursue these and other appeals (see below for details). Obtaining reversals or remands on the arguments made in these appeals could set up additional, major obstacles in Pembina's way.
The struggle to prevent development of an LNG (liquefied natural gas) export facility on Coos Bay’s North Spit, to which Oregon Shores is deeply committed, is fought on many fronts: national, state, and local. We have been deeply engaged for more than a decade in the effort to prevent the Jordan Cove Energy Project from doing grave damage to the Coos Bay estuary, changing the environment of the North Spit, and becoming Oregon’s largest emitter of greenhouse gases.
Oregon's process for determining the appropriateness of a project like Jordan Cove is now threatened on the federal level. On March 19, ignoring appeals to delay due to the coronavirus situation, the Federal Energy Regulatory Commission (FERC) approved the application by the Jordan Cove Energy Project for an LNG (liquefied natural gas) export terminal, to be located on Coos Bay’s North Spit. The approval also includes the associated, 229-mile Pacific Connector crossing southern Oregon.
Oregon Shores promptly joined many other groups opposed to the project in demanding a rehearing from FERC. The state of Oregon also demanded a rehearing, in very aggressive terms. No such hearing has been granted.
Meanwhile, as soon as FERC handed down its decision, Jordan Cove appealed to the U.S. Secretary of Commerce, demanding that the Trump administration overrule the state of Oregon, which denied approval for the project. Specifically, the state’s Department of Land Conservation and Development rejected certification to the federal government that the project was consistent with Oregon’s coastal management program. FERC’s approval was conditional, requiring that Pembina (the Canadian multinational behind the Jordan Cove project) obtain state certification. Jordan Cove is attempting to get around this requirement, a key feature of the Coastal Zone Management Act.
If the Trump administration (or any administration) attempts to break the agreement between the federal government and the state, and ram through the Jordan Cove project despite state rejection, Oregon Shores will do everything in our power to support the state in opposing this. Gov. Kate Brown has made it crystal clear that the state will vigorously oppose any effort to traduce its authority, and Oregon Shores will participate in any way in which we can assist.
These struggles, with profound legal implications, will continue for months or years. Meanwhile, less noted and less colorful, yet potentially essential, the struggle goes on over local land use approvals for the project. Jordan Cove needs these local permits as well, and Oregon Shores is playing a lead role in trying to block the project at the local level.
Oregon Shores, working with the Crag Law Center as part of our Coastal Law Project, is engaged in five appeals of local land use decisions favoring Jordan Cove (including the one already decided in our favor). Oregon’s Land Use Board of Appeals (LUBA) is still hearing challenges of local land use permits, so these challenges are still moving forward. Oregon Shores’ five ongoing appeals include:
*A package of land use applications for the site of the proposed LNG terminal site that were approved by Coos County. Oregon Shores, the lead appellant, is arguing that the county failed to adequately address impacts to the estuary and to North Spit habitats and failed to take into account its own Estuary Management Plan. This is "Omnibus 1," mentioned above.
*The county’s decision, after a re-hearing, to approve a 2016 application for elements of the project. (Oregon Shores had successfully appealed the Coos County’s approval the first time around, and LUBA had remanded the decision to the county.) Joined as appellants by Surfrider, we argue that the county has again ignored the concerns of the community and experts, and wrongly determined that impacts from the project, including the loss of benthic and estuarine plant and animal communities resulting from the dredging and loss of access for recreation and fishing, would not constitute a substantial interference with the public trust. (This is "Omnibus 2.")
*Coos County’s decision to allow Jordan Cove to dredge Coos Bay’s navigation channel to make way for LNG tanker traffic. We have appealed the fact that the proposed channel widening would force rezoning of more than 20 acres of the estuary currently zoned for natural or conservation purposes to allow for the dredging.
*A parallel permit application submitted by Jordan Cove to the City of Coos Bay to allow dredging in a natural area of the estuary adjacent to significant eelgrass beds to allow for LNG Tanker transit. Oregon Shores strongly argued through comments at the public hearing before the planning commission, subsequent open record periods, and a public hearing before the Coos Bay City Council that the proposed dredging and associated components would violate the City’s land use plan and the statewide planning goal protecting estuarine resources. Despite strong opposition in the comments, and a recommendation of denial by the Lane Council of Governments (a neutral party the city hired to review the application and comments from community members, and to make a recommendation to the city council), the council voted to approve Jordan Cove’s request to dredge Coos Bay. The Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians (CTCLUSI) appealed the City’s decision as lead petitioner to LUBA, and Oregon Shores is intervening on the side of the tribes.
*The decision by the City of North Bend to approve an application by Jordan Cove to allow dredge material disposal right next to Coos Bay and dredge material transport through the estuary. Oregon Shores’ appeal highlights the city’s failure to address water quality impacts and adverse impacts to eelgrass habitat in approving Jordan Cove’s requests and argues that these proposals are inconsistent with the requirements of the Coos Bay Estuary Management Plan. (This is the appeal we recently won.)
Winning any of these appeals would block the project, or at least ensure that Jordan Cove/Pacific Connector (Pembina) would have to revise its applications to include complete information about potential impacts to the estuary (as required by the rules) and re-start the hearing process with the county or one of the cities.
This, however, would depend on whether the Coastal Zone Management Act is honored. Since 1972, this Act has provided coastal states with the authority to deny federally approved projects if they are not deemed consistent with the state’s recognized coastal management program. Pembina clearly hopes to see the Trump administration overrule the CZMA. This would set up a major legal and constitutional battle, in which Oregon Shores and our allies in opposing the LNG project would engage in every possible way.
The Jordan Cove battle thus continues on many fronts. Keep an eye on this website for updates.