Updated 11:23 a.m.
The Federal Energy Regulatory Commission today upheld its September approval of the Bradwood Landing liquefied natural gas project, denying multiple requests for a rehearing of the case and opening the door for challengers including the states of Oregon and Washington to take their complaints to the U.S. Court of Appeals.
Gov. Ted Kulongoski says he intends to take FERC to court over its decision to conditionally approve the Bradwood project without proper environmental reviews or state permits.
"I have been clear that FERC should not issue a license until all environmental issues are appropriately addressed and not before state permit decisions have been rendered," Kulongoski said in an e-mailed statement today. "I am deeply disappointed that FERC has chosen to ignore Oregon's concerns in this matter and have asked the Attorney General to seek prompt judicial review."
Oregon Attorney General John Kroger said FERC's order "allows the Bradwood Landing LNG project to proceed without proper regard to its impact on Oregon's water quality and coastal resources."
Oregon has 60 days to file in a U.S. Court of Appeals.
In September, the five-member FERC board conditionally approved the $650 million Bradwood Landing project, proposed for a site 20 miles east of Astoria on the Columbia River. The order required the developer NorthernStar Natural Gas Inc., of Houston, to implement 109 mitigation measures to enhance safety and security and minimize environmental impacts.
The National Marine Fisheries Service, the states of Oregon and Washington and conservation and tribal groups asked the board to reconsider, arguing FERC jumped the gun by approving the project before state and federal agencies had time to complete assessments required by the Coastal Zone Management Act, Clean Water Act, Clean Air Act and Endangered Species Act.
But when the time came for FERC to respond to their requests in November, the board put off its decision.
Today, FERC denied their requests, saying its decision does not impact the state's permitting process. Because NorthernStar cannot begin construction on the project until all approvals are obtained, FERC argues, the development won't cause any environmental impacts until it is in full compliance with all relevant federal laws.
Challengers argued FERC should have issued a supplemental Environmental Impact Statement, a thorough environmental review of the project's impacts, to account for changes to the project since the first EIS was issued.
FERC responded today by saying the project has not substantially changed since issuance of the draft EIS.
Brett VandenHeuvel, executive director for the anti-LNG group Columbia Riverkeeper, said his organization will also be appealing FERC's decision, and he expects to win.
"FERC's decision is clearly illegal and we will challenge it in federal court," he said. "FERC's rushed approval comes as no surprise, and it's one of the final gifts of the Bush-appointed FERC Commission to the fossil fuel industry. When we appeal, the Court will have no patience for FERC's thinly veiled political decision."
NorthernStar President Paul Soanes said his company would have preferred that FERC wait to take final action until after state and federal agencies completed their review process, but he said the decision was based on a thorough review, and is just one of many to come before the company can start building.
"FERC approval is just one of many approvals required in order for this project to proceed," he said. "This decision does not in any way change Bradwood's commitment to comply with Oregon and Washington's requirements, and we continue to work with state and federal agencies to assist them in completing their review of our project."
Oregon Gov. Ted Kulongoski and Attorney General John Kroger Thursday announced three separate legal challenges to federal executive actions that threaten the environment and a woman's right to choose.
The state will appeal a decision by the Federal Energy Regulatory Commission authorizing the Bradwood Landing LNG facility on the Columbia River. FERC's conditional license allows construction to begin without regard to the harmful impact on Oregon's water quality and coastal resources. Oregon will argue that federal law requires consideration of those impacts.
Oregon also plans to go to court to block two last minute Bush administration regulations that would undermine crucial provisions of the Endangered Species Act and basic reproductive rights for Oregonians. These policies were adopted in the final weeks of the Bush Administration in an attempt to avoid Congressional input and public scrutiny.
"In its final hour, the Bush administration is attempting to roll back protections in two important areas that Oregonians care deeply about," Kulongoski said. "Ideology should not trump good public policy and I will not let these two changes take effect and hinder our progress to protect our environment, fight climate change or infringe on a woman's right to reproductive health care."
"There is nothing more important than the rule of law," added Attorney General Kroger. "These backdoor Bush administration rules violate federal law and harms Oregonians. The Department of Justice will aggressively protect our state in court, especially when our environment and our basic civil rights are threatened."
Endangered Species Act Regulations
For years, efforts to rollback protections for endangered species protections have failed in Congress for lack of support. So in order to bypass Congress, the Bush Administration aimed to make substantial changes to the ESA through rule making on Dec.16, 2008, the last possible minute, allowing for little Congressional input and only a short window for public participation.
The Bush regulations significantly amend the manner in which the ESA protects endangered species.
One amendment creates a "global processes" exception. This exception would mean that actions that lead to climate change and global warming would no longer be regulated by the ESA. In other words, if global warming was melting the polar ice caps, which in turn was ruining the polar bear habitat and threatening the existence of polar bears, ESA would no longer apply.
The ESA itself does not allow for such exceptions, and the case Oregon intends to bring contends the Bush Administration cannot create exemptions not identified in statute.
Another significant amendment would undermine the "cautionary principle," which is derived from the ESA's requirement to "insure" that actions do not jeopardize protected species. That principle requires that the federal government err on the side of protecting endangered species when human actions affect protected species. The new amendments reverse that principle, requiring that agencies ignore effects on species until they are proven to be harmful. Oregon asserts that the new rule is illegal.
Oregon and several other states Friday will join a lawsuit filed by California challenging the new regulation.
A new regulation adopted by the Bush administration's Department of Health and Human Services would allow doctors and hospitals to deny reproductive health services to women. The new rule would make it impossible for Oregon to enforce its emergency contraception laws that assist victims of sexual assault.
This rule is so last minute that it is scheduled to go into effect on the day that President Barack Obama is due to take the oath of office.
Under Oregon law, a hospital must provide a victim of sexual assault information on emergency conception and if requested, provide emergency contraception to the victim. Under the new Bush administration rule, a hospital could refuse to comply with the state law and if the state tried to enforce it, DHS could penalize the state by withholding all federal funds.
Oregon and several other states Thursday joined a lawsuit filed by Connecticut seeking to overturn the rules.