Posted on April 10, 2017 by Rick Glick
The Jordan Cove LNG project in Coos Bay, Oregon, prevailed in a legal challenge to a key permit. The permit, issued by the Oregon Department of State Lands, allows dredge and fill work for a deep water ship channel. In Coos Waterkeeper v. Port of Coos Bay, the Court of Appeals rejected that challenge and upheld the permit.
Petitioners’ main argument on appeal was that DSL’s permitting decision should have applied statutory environmental standards not only to the dredge and fill work, but also terminal operations after construction. The court found this argument to lack merit, finding that DSL’s authority is limited to the “project,” defined in the statute and its legislative history as the dredge and fill work only.
Petitioners also argued that DSL should have asserted permitting jurisdiction over complementary uplands excavation. This work would initially be separated from the bay by a 40-foot berm, and then the berm would be removed to create the channel. The court concluded that DSL jurisdiction would not apply to uplands work (i.e. above the high tide line), and that removal of the berm and flooding the affected uplands are within scope of the permit.
The politics of LNG development in Oregon are highly charged. The Oregon LNG project was abandoned following election of a new county board of commissioners made up of project opponents. Local opposition slowed down state regulatory review and the project never was tested against objective legal standards. It is heartening to see that for the Jordan Cove project, which also is controversial, both the state agency and the court assessed the project as they would any other. The politics are still there, but the rule of law in this instance rose above.
The outcome of this case highlights an anomaly in green Oregon. Unlike our neighbors to the north and south, we have no mini-NEPA law. If we did, the environmental effects of the Jordan Cove project taken as a whole would certainly have been part of the state permitting calculus. Many bills to create a comprehensive environmental impact review process have been proposed, but none have taken hold. With a Democratic controlled legislature and state house, it seems only a matter of time.