Last week, a controversial pipeline and liquefied natural gas export proposal in southwest Oregon abruptly pulled out of a key state permit process. That left many observers wondering what Pembina, the Canadian company behind the Jordan Cove Energy Project, has in mind.
Company officials would say only that they’re looking forward to getting approval next month from federal authorities.
Susan Jane Brown is an attorney with the Western Environmental Law Center in Eugene, a non-profit that’s long opposed the Jordan Cove project. JPR’s Liam Moriarty asked her what she makes of the latest turn of events.
JPR Let me start right off by asking, given recent developments, is it a reasonable question to ask whether Pembina is looking to use a federal preemption strategy to try to get approval for this project?
SJB: I think that is certainly a plausible explanation. If I were them, that would be something that I would be taking a hard look at as well.
JPR: What might some likely legal strategies be?
SJB: The law is fairly clear that the federal government can preempt states on many issues involving the authorization and construction of a facility like Jordan Cove.
However the law is also clear where there are also some areas where the state maintains pre-emminancy over those areas, and one of those areas is the Clean Water Act.
The Clean Water Act has a number of components to it. One of them is that if you are going to dredge or fill a waterway, that you have to get state authorization to do that. So the State of Oregon in this case does still have authority and jurisdiction over those types of questions.
I think that one of the things that the applicant may be trying to do here is one of two things. One, hoping that if FERC issues the certificate of public convenience and necessity, that that will signal to the state that the
state should just give up and allow FERCs authorization to carry the day.
The other could be that withdrawing the application and asking FERC to issue a decision first, that if the applicant were to go back to the state -- because it is abundantly clear that FERC will condition a grant of the certificate based on obtaining all of the other necessary authorizations that the applicant needs which does include certification from the State of Oregon for dredge and fill authority.
But in that, going back to the state, that the new Waters of the U.S. rule which has just been promulgated by the administration, may change the outcome at the state level.
JPR: Are there other legal approaches that an applicant in this situation might take?
SJB: A third option is that there has been some recent case law that calls into question whether or not the State really can in fact preempt federal law around Clean Water Act issues.
What that case law has said, is that when an applicant submits an application, the clock starts ticking and the State has a year to either grant or deny that application.
We’ve been working on this, this most recent round with the state, for two or three years now.
JPR: As you know, the state has given Pembina four deadline extensions on this particular permit already. Each time the company asked for more time to gather the additional information that the state said it needed to make a decision. So those delays were at the applicant’s request.
SJB: But that situation where the state has granted an extension has been called into question recently in some case law.
My guess is that Pembina is hedging its bet and has decided to withdraw, because it’s pretty clear based on the communications from the state, that the state has lots of concerns about this application and this project, and whether or not it can, in fact, be safely and legally built here in Oregon.
So the applicant may be just trying to hedge their bet. They’re going to try all of these things. They’re going to ask FERC to override State authority. They may, in fact, sue the State of Oregon for failure to grant those permits within the requisite time period. It may be hoping that at the end of the day, new rule-making will actually dictate how hard it is to get state authorization.
JPR: Thank you for talking with us today…