Federal Agency Approves Jordan Cove LNG During Public Health Emergency

While the focus of our communities over the past few weeks has been on staying healthy and supporting each other in the middle of the COVID-19 pandemic, the Federal Energy Regulatory Commission (FERC) decided to conditionally approve certification for the Jordan Cove LNG project on March 19, 2020. FERC’s approval was granted on the condition that the project qualifies for required permits from the state of Oregon.

A few hours later, Pembina (the Canadian corporation behind the project) filed an appeal with the U.S. Secretary of Commerce to override the state of Oregon’s denial of certification for the project under the Coastal Zone Management Act.

Fortunately, we also saw some strong statements from Oregon leaders. After years of community pressure, yesterday Senator Wyden came out in opposition to the project, and Governor Kate Brown also released a statement vowing to uphold the requirements of Oregon law, stating:

“And let me be clear to the concerned citizens of Southwest Oregon: until this project has received every single required permit from state and local agencies, I will use every available tool to prevent the company from taking early action on condemning private property or clearing land.”

That’s a lot for a Thursday when our communities are in midst of a national public health emergency.

So what does this all mean for the Jordan Cove LNG project? Let’s break it down.

1.     On March 19, 2020, FERC conditionally approved certification for the Jordan Cove LNG project under the Natural Gas Act pending key state approvals on permits.

Want to read the full order? We’re still making our way through it, but the key take away is that FERC approved certification for the project under the Natural Gas Act on condition that the project has received “all applicable authorizations required under federal law (or evidence of waiver thereof).” In other words, the project must receive approved permits from the state of Oregon required under federal laws, including the Clean Water Act, the Clean Air Act, and the Coastal Zone Management Act. These are federal laws underpinned by the Commerce Clause that preserve state authority.

Read more about the FERC process until now for the Jordan Cove LNG project.

What’s the status of state decisions authorized under federal laws? 

State decisions matter. The Jordan Cove LNG project needs approved state permits before it can move forward. Pembina lacks a realistic path to preempt all of these critical state decisions under the Clean Water Act, Clean Air Act, and the Coastal Zone Management Act.

• Oregon Department of Environmental Quality denied the Clean Water Act Section 401 Certification in May 2019:

Under the federal Clean Water Act, each state has the authority to review large infrastructure projects that require federal licenses or permits and evaluate whether there is reasonable assurance that the project will comply with state water quality standards. These standards essentially out limits on different types of pollution, such as mercury or temperature, that are established based on sound science to protect clean water and public health.

The state of Oregon is taking its authority seriously and denied the Clean Water Section 401 state water quality certification for the project back in May 2019. The Oregon DEQ denied the 401 certification because the Jordan Cove LNG project could not demonstrate that it would meet Oregon’s clean water standards. With more than 200 pages of findings, DEQ provided detailed and specific examples about the risks to clean water from the project and the lack of assurances that the project would comply with water quality standards.

Currently, this means that Jordan Cove LNG has no active Clean Water Act Section 401 application. The federal government is in the process of moving forward on a proposed rulemaking that would undermine the careful balance of state and federal responsibility to protect clean water and healthy rivers. The U.S. Environmental Protection Agency (EPA) has proposed changes to Section 401 that would make it much harder for states and tribes to protect their clean water resources. Specifically, the proposed rule would restrict the time that states and tribes have to review applications for projects that could harm clean water, narrow the authority of states and tribes to consider impacts to water resources, and allow the federal government to effectively override a state’s or tribe’s decision to approve, deny, or set conditions on permits. If the EPA is successful in weakening the state’s authority under the Clean Water Act to review and stop harmful projects that put our clean water at risk, Pembina will likely reapply. Under the new proposed rules, it could become easier for the project to be approved -- even if it puts our waters at risk. 

•  Oregon Department of Land Conservation and Development denied certification for the project under the Coastal Zone Management Act in February 2020.

Under the Coastal Zone Management Act, coastal states with federally approved coastal programs conduct a “federal consistency” review when a federal activity or an activity that requires federal permits or licenses (such as Jordan Cove LNG) is proposed in the state’s coastal zone. Read more about the Coastal Zone Management Act federal consistency review.

In February 2020, the Oregon Department of Land Conservation and Development (DLCD) denied certification for the Jordan Cove LNG project. The Oregon DLCD denial of the Coastal Zone Management Act certification for the project is the latest demonstration that this project fails to meet the standards established under state and federal laws to protect the environment and public health. In Oregon DLCD’s denial, the agency specifically states that “coastal adverse effects from the project will be significant.” Further, Oregon DLCD states that:

“the project will negatively impact Oregon’s coastal scenic and aesthetic resources, a variety of endangered and threatened species, critical habitat and ecosystem services, fisheries resources, commercial and recreational fishing and boating, and commercial-shipping and transportation, among other sectors critical to the state.”

After FERC released its conditional approval on March 19th, Pembina (the Canadian corporation behind the project) filed an appeal to the U.S. Secretary of Commerce. This appeal asks the Secretary to override Oregon DLCD’s denial. An override request can be granted if the Secretary determines that the activity is consistent with the Coastal Zone Management Act, or is necessary in the interest of national security. If the Secretary overturns the Coastal Zone Management Act certification denial, the State of Oregon can challenge.

What’s next?

Following this conditional approval from FERC, landowners, Tribal Governments, environmental groups, and other intervenors now have a 30-day period to submit a “rehearing request” to FERC. The state of Oregon could also request a rehearing from FERC. 

With your support, we will be working closely with our partners and allies across the state to challenge this decision. We will continue to track and respond to any new or renewed permit applications. Together, we can push back on this misguided decision and stop this harmful project once and for all.

These are uncertain times and as we all adjust to the shifts in our daily life, Pembina and the fossil fuel industry continue their efforts to see this dangerous proposal become a reality. With the support from long-term partners like you, we will continue to do everything we can to protect the Rogue and stop Jordan Cove LNG for good.