Key Skirmish in Jordan Cove Battle Taking Place

 Jordan Cove (middle ground to the left) from the air.\Photo by Rena Olson.
Jordan Cove (middle ground to the left) from the air.\Photo by Rena Olson.

There have been two important recent developments in the long, long struggle to prevent development of an LNG (liquefied natural gas) export terminal on Coos Bay’s North Spit. 

The state’s Department of State Lands is currently considering the Jordan Cove Energy Project’s application for a “removal-fill” permit, covering the proposed project’s impacts due to dredging in Coos Bay for the terminal itself, but also for the associated pipeline which will run for 229 miles across Oregon, carrying fracked gas to the terminal, and in the process affect hundreds of streams and many of southern Oregon’s most important, salmon-bearing rivers.  Oregon Shores is collaborating with many other partners in the anti-LNG coalition to produce an extensive set of comments in opposition—Oregon Shores’ particular role is to focus on impacts to the estuary and habitats on the North Spit.  Here are the complete comments from the coalition.

Members of the public can also weigh in, until 5 p.m. on Feb. 3.  Find background information on the issue and the ongoing timeline, a link to the application itself, and instructions on how to comment, on the DSL’s website, https://www.oregon.gov/dsl/WW/Pages/jordancove.aspx.

Oregon Shores, through our Coastal Law Project, has created a briefing paper which winds up with a set of talking points for use in commenting.  Comments can be short and personal, or detailed and technical, and can focus on everything from personal loss of recreational opportunities to the health of the estuary and the contribution of fracked gas to global warming.

In another potentially major development, a judge has thrown out Jordan Cove’s land use permit to cross seven miles of Douglas County with the pipeline.  Oregon Shores worked intensively early in this process to help local citizens launch their appeal of the county’s permit granted to the project.  Attorney Tonia Moro then carried the case to circuit court on behalf of the appellants.

Douglas County judge Kathleen Johnson invalidated the permit needed by Jordan Cove, which the county had continued to renew year after year. County rules require a conditional use permit for the pipeline to cross seven miles of forest land that falls within the county’s coastal zone . The county issued a permit in 2009, on the condition that construction must begin within two years and that the project had to win Federal Energy Regulatory Commission (FERC) approval. Douglas County commissioners issued one-year extensions since 2009, despite the fact that FERC denied the pipeline application in March, 2016, and that no construction (thankfully) had taken place. The judge invalidated the permit, saying the applicant failed to meet the two conditions. A Jordan Cove project spokesman said the company is reviewing its options, including an appeal or a new application.  This may seem to be a small sticking point for such a major, multinational project, but local land use decisions can be the Achilles’ heel of such grand schemes.

Until these recent occurrences, the old Army saying "Hurry up and wait" fit the battle over the proposed Jordan Cove LNG export terminal—Jordan Cove kept submitting applications, but pulling them back again in the face of oppostion.  Oregon Shores, along with many allies, has been battling to prevent this threat to public health and safety and to the North Spit and Coos Bay estuary since 2006.  Still, 2019 may prove to be the final confrontation.  Jordan Cove, now owned by the giant Canadian corporation Pembina, has filed again with the Federal Energy Regulatory Commission (FERC), and FERC has indicated a timeline leading to a decision within a year--not that such schedules haven't slipped before.

Indeed, that is what happened with the approval process for the essential water quality permits the project must receive from both the U.S. Army Corps of Engineers and the state's Department of Environmental Quality (DEQ).  The public comment period concerning water quality certifications from both the Corps (Section 404) and DEQ (Section 401), essential if the Jordan Cove project is to move forward, was extended over the summer.  To date, more than 43,000 public comments have been received on the issue.  The coalition working to oppose the development of both Jordan Cove and the associated Pacific Connector pipeline submitted extensive comments opposing certification for the LNG terminal and pipeline.  Through our Coastal Law Project, a partnership with the Crag Law Center, Oregon Shores contributed key components of the collective document.  See our comments regarding the state 401 certification for background on the issue.

And then, after all the work was done, Jordan Cove withdrew its application.  We now await the next round in this particular arena.  The same thing happened initially with the application to DSL for the removal-fill permit, although that is now re-submitted and under consideration.

The would-be developer behind the Jordan Cove Energy Project--at the time Veresen, Inc., since purchased by fellow Canadian multinational Pembina--was turned down in 2016 by the Federal Energy Regulatory Commission (FERC), on the grounds that the company had failed to demonstrate a public benefit that would outweigh the harm the project (especially the pipeline) could do to communities and property.  The company's local land use permit, approved by Coos County, was appealed to Oregon's Land Use Board of Appeals by Oregon Shores and local partner Citizens Against LNG.  Our appeal was successful, and ultimately affirmed by the courts, so Jordan Cove was thwarted at that point.  The local land use process, where Oregon Shores will continue to take the lead for the coalition opposing the LNG scheme, may once again prove the bottleneck where the entire project can be blocked. 

However, in the wake of the 2016 election, knowing that newly elected President Trump would be appointing new FERC commissioners likely to be sympathetic to energy development, Jordan Cove started the process all over again.  But after that, while there was furious activity behind the scenes, there was little publicly visible movement on the Jordan Cove front until this spring, when the company applied for its water quality permits, and the state and federal processes got underway.  These are the regulatory reviews that have now been delayed.

When the Corps of Engineers and DEQ begin new reviews of whatever water-quality application Jordan Cove eventually files, members of the public also have more time to comment. For instructions on how to comment, go here.

Questions about the DEQ’s process can be addressed to DEQ’s Jordan Cove project coordinator, Mary Camarata, at 541-687-7435 or toll free within Oregon at 800-844-8467.

Oregon Shores, working through our Coastal Law Project (a partnership with the Crag Law Center), will be raising a range of objections as part of all these processes.  Our key arguments include: dredging and filling in Coos Bay and associated wetlands adjacent to Henderson Marsh and Jordan Cove (the place, not the company) will do unacceptable damage to these important aquatic resources; additional dredging along the main navigational channel to allow access to LNG tankers will alter habitats in the estuary and may impact clamming and crabbing areas; the applicant hasn’t established that its plans for “mitigating” the damage done to the estuary are in any way adequate; the method for drilling a pipeline under the bay is unproven; once the terminal is operation, the LNG vessels transiting the bay will interfere with the ability of other boats to access public trust resources in the bay including fishing and shellfish areas.  There will be more, once our comments are complete.

We’ll be fighting with public opinion at our backs.  A recent survey by a professional public opinion firm discovered that 57 percent of Oregonians strongly oppose the Jordan Cove project or lean toward opposing it, while 22 percent strongly favored or leaned toward favoring it, with 20 percent undecided.  The results were even more striking when only those with strong opinions are counted—30 percent strongly oppose the project, with only six percent strongly in favor.  Significantly, the results were essentially the same in Coos County, despite Jordan Cove’s relentless public relations campaign and claims of strong local support.

These regulatory processes have been a key focus for Oregon Shores’ Land Use Program for many months.  Still to come is a crucial battle on another front, the local land use permitting process.  The local land use regulations can be a means for local activists to trip up huge multinational projects.  While Coos County approved Jordan Cove’s land use application the last time around, Oregon Shores successfully appealed this approval to the Land Use Board of Appeals, and won.  The victory was temporary, because Jordan Cove’s application at the federal level was rejected by the Federal Energy Regulatory Commission (FERC), so the company didn’t fight any further at the time.  Instead, Jordan Cove started a new application process, hoping for better results from FERC under the Trump administration.  They will have to apply again at the local level, and Oregon Shores will take the lead on behalf of LNG opponents in resisting local approval.

Without local land use approval it should be harder for state agencies such as the Department of Environmental Quality and the Department of State Lands to issue permits regarding water quality, dredging and other aspects of the project.  This in turn means that the state could not certify the project’s compliance with the Coastal Zone Management Act (CZMA) which should make it harder or impossible to get federal permits. Under CZMA, the federal government is required to be consistent with a state’s approved coastal management program, so if a state declares that a project is non-compliant, the federal government should theoretically honor that decision by rejecting federal permits.

As these various processes continue, with the fate of the Coos Bay estuary and North Spit in the balance, we will provide updates and suggestions for making public comments.  For more information, contact Phillip Johnson, (503) 754-9303, [email protected].