LNG on Coos Bay: Is it too soon to decide?

NEPA Overview

The National Environmental Policy Act (NEPA), together with its implementing regulations, is in many respects a very unusual federal law. What makes it so unusual is its clear and logical statement of federal policy, its provision of a format by which all Federal agencies are to document their compliance with the stated policy, and its provision of standing so that the general public may participate in the documentation process and monitor the compliance of the agencies with the letter and intent of NEPA.

The stated purpose of NEPA is to “insure that environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations”. For all major Federal actions, the agencies involved must document how environmental considerations were handled by preparing an Environmental Impact Statement (EIS). In order to maximize its utility to the various agencies involved as well as to the general public, NEPA regulations provide a detailed and specific format for all EIS’s.

NEPA is a procedural law not a substantive law. It does not instruct the agencies to give preference to environmental considerations in all cases. It simply instructs the agencies “to document how, specifically, environmental considerations were incorporated with economic and technical considerations in all plans and projects”. An EIS is meant to “serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made”, and it “must be objectively prepared and not slanted to support the choice of the agency’s preferred alternative over the other reasonable and feasible alternatives”.

NEPA also sets up a two-track enforcement process to insure compliance with the act itself.

At the Federal level, NEPA created the Council on Environmental Quality (CEQ) and placed it within the Executive Office of the President. Amongst other duties are included its role “to review and appraise the various programs and activities of the Federal Government in the light of the policy set forth in title I of this Act for the purpose of determining the extent to which such programs and activities are contributing to the achievement of such policy…”. Subsequent to the passage of NEPA, the Environmental Protection Agency (EPA) was established to help monitor the vast array of agency activities related to NEPA and to refer serious problems to the CEQ for corrective action.

In terms of granting standing to the public for tracking agency compliance, NEPA contains the following statement: “The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment”. Thus, any citizen can participate directly in the NEPA process and any affected person can institute litigation to force compliance with the procedural mandates relating to the preparation, orientation, and content of an EIS.

It is important to recognize current reality at this point. The top 8045 positions which form the upper echelons of the federal agencies are filled by political appointees who may or may not have the technical qualifications or the objectivity required for the positions they occupy. Since the passage of NEPA in 1969, there has been a long history of attempts to evade, circumvent, or ignore its procedural specifications. Noted attorney Patrick Parenteau, in a published paper, stated: “there has not been an open debate on the future of environmental policy. Rather, …sweeping environmental changes (have been made) through stealth campaigns masquerading under sly euphemisms like Healthy Forests, Clear Skies, No Net Loss, Stewardship Contracts, and Sound Science….(Administrations are) looking to change environmental law by fiat, collusion, and deception. These changes have little regard for environmental consequences and even less regard for the foundational democratic principles of transparency and open debate”.

At the present time, federal management and enforcement of the NEPA process is essentially non-functional. The Council on Environmental Quality, the only agency that can enforce the provisions of NEPA, consists of a Chairperson and two council members with supporting staff. Currently, the Chairperson is in place, but the two other council member positions remain vacant, as does the key staff position of Associate Director for Energy and Climate Change. Persons nominated by the President to fill the vacant council positions must receive Senate approval. Given the dysfunctional partisan morass that currently exists in Washington, the CEQ is likely to remain functionally inoperative for some time.

The EPA is currently without a leader also. On May 9, 2013, each and every one of the eight Republican members of the Senate Committee for Environment and Public Works boycotted the confirmation hearing for U.S. Environmental Protection Agency (EPA) Director nominee Gina McCarthy, forcing a delay of a vote to move her confirmation to the floor of the Senate.

Thus, effective federal management of the NEPA process remains on-hold and effective enforcement has essentially been delegated by default to the public and the courts. Two recent occurrences illustrate the reality of this situation.

In October, 2012, the 9th Circuit Court of Appeals ruled in favor of a challenge that the BLM’s decision to issue a right-of-way for the Ruby Gas Pipeline was “arbitrary and capricious” because the planning process leading to the decision was not adequately documented in a viable EIS. Therefore, the 9th Circuit vacated BLM’s decision and remanded the matter back to the BLM with instructions that a Supplemental EIS be prepared in full compliance with NEPA. This Supplemental EIS will serve as the foundation for the BLM’s decision as to whether or not to reissue the right-of-way and, if so, to determine what terms and conditions it would require. This cumbersome and inefficient process could have been prevented had EPA adequately reviewed the original EIS and referred the matter to the CEQ for corrective action.

In another case, the Corps of Engineers extended the rights to continue surface coal-mining activities on 70 different sites in Kentucky, even though the original permits under the Clean Water Act had expired. They did this without adequate consideration under NEPA, and the action was once again challenged as being “arbitrary and capricious”. On April 22, 2013, the 6th Circuit Court of Appeals found in favor of the appellants and stated that the Corps “needed to follow the
applicable CWA and NEPA regulations by documenting its assessment of environmental impacts and examining past impacts, respectively”. Here again, effective actions by the EPA and CEQ relating to the implementation of NEPA are notable by their absence.

Many cases similar to the above could be cited. They all teach the same lesson, namely, that timely, meaningful, and effective participation in the entire NEPA process by citizens is extremely important at this point in time.

Now, let’s focus this discussion on Coos County.

Past Actions – Jordan Cove LNG import terminal

FERC issued a Draft EIS for the original Jordan Cove LNG import project in August, 2008. The EPA reviewed the document and assigned it an “EO-2” rating. The EO-2 rating is defined and explained by the EPA as follows:

“EO – (Environmental Objections) The review has identified significant environmental impacts that should be avoided in order to adequately protect the environment. Corrective measures may require substantial changes to the preferred alternative or consideration of some other project alternative (including the no action alternative or a new alternative). The basis for environmental Objections can include situations:
Where an action might violate or be inconsistent with achievement or maintenance of a national environmental standard;
Where the Federal agency violates its own substantive environmental requirements that relate to EPA’s areas of jurisdiction or expertise;
Where there is a violation of an EPA policy declaration;
Where there are no applicable standards or where applicable standards will not be violated but there is potential for significant environmental degradation that could be corrected by project modification or other feasible alternatives; or
Where proceeding with the proposed action would set a precedent for future actions that collectively could result in significant environmental impacts.

2 – (Insufficient Information) The draft EIS does not contain sufficient information to fully assess environmental impacts that should be avoided in order to fully protect the environment, or the reviewer has identified new reasonably available alternatives that are within the spectrum of alternatives analyzed in the draft EIS, which could reduce the environmental impacts of the proposal. The identified additional information, data, analyses, or discussion should be included in the final EIS.”

FERC did not fully address the concerns raised by the EPA in a substantive and comprehensive manner, but went ahead and issued a Final EIS for the Jordan Cove import project in May 2009. This was followed by a Record of Decision and an Order authorizing the Jordan Cove import terminal that was issued on December 17, 2009.

Because of the glaring deficiencies in FERC’s EIS, the decision to issue the permit was immediately challenged by the Oregon Attorney General and a consortium of non-governmental organizations and individuals. The rationale for these appeals is summarized nicely on the final page of the Oregon Attorney Generals documentation: “For the reasons stated herein, FERC must withdraw the order authorizing the Jordan Cove (import) Project. Before reissuing a decision on the Jordan Cove project, FERC must perform the required analysis of the effects of the project on the public interest and on the environment under NEPA”.

FERC never processed these appeals on their merit. Rather, they vacated the authorization for the Jordan Cove import terminal on April 16, 2012. The reason given by FERC for vacating the permit was that the Jordan Cove applicant had suddenly discovered that an LNG export terminal, previously labeled by them as a “stupid idea”, had now apparently become a golden panacea. FERC initiated a new EIS process for the proposed LNG export terminal.

Current Status – Jordan Cove LNG export proposal

Of special interest at this point is the following statement by FERC contained in their Notice of Intent to prepare an EIS for the LNG export terminal: “The new EIS for the (export terminal) will make use of the previous analyses (the EIS for the import terminal), update information, as needed….”. It is quite apparent FERC intends to recycle much of the inadequate import terminal EIS in yet another flagrant attempt to evade the mandates of NEPA in order to try to justify an export terminal.

The NEPA process for the Jordan Cove export terminal is underway. Scoping has been completed, and it has been estimated that a Draft EIS will be issued later this year.

Region 10 of the Environmental Protection Agency filed an excellent set of scoping comments with FERC on October 29, 2012. I use this as a source in order to briefly summarize the types of analyses and information that would be available to us if we were to be provided a legitimate EIS. Following are some brief excerpts from EPA’s scoping comments:
“The EIS should include a clear and concise statement of the underlying need for the proposed project……not only FERC’s purpose but also the broader public interest and need.”

“NEPA requires evaluation of reasonable alternatives, including those that may not be within the jurisdiction of (FERC). In the EIS we would like to see a more rigorous exploration of those alternatives.”

“In the EIS, we recommend describing aquatic habitats in the affected environment and the environmental consequences of the proposed alternatives.

“We recommend the analysis give consideration to how marine traffic might change, and how this may affect commercial or recreational use on the bay and travel over the bar”.

“We believe it is appropriate to consider available information about the extent to which drilling activity might be stimulated by the construction of an LNG export facility on the west coast, and any potential environmental effects associated with that drilling expansion”.

“The cumulative impacts analysis should identify how resources, ecosystems, and communities in the vicinity of the project have already been, or will be affected by past, present, or future activities in the project area. Trend data should be used to establish a baseline for the affected resources, to evaluate the significance of historical degradation, and to predict the environmental effects of the project components”.

The above mentioned points are brief excerpts from EPA’s 14-page scoping submission to FERC. While not a comprehensive listing by any means, I’ve chosen to display these few because, in my estimation, they form the minimal level of information and analyses that would allow an individual to make an informed decision as to whether to favor or oppose the construction and operation of an LNG export terminal on Coos Bay.

Please note, having access to this type of data and information is not wishful thinking on my part, nor is it something that would be nice to have if it became available. Rather, we are all entitled to these types of data and information under Federal law, and our rights to it have been sustained by the courts for 40 years. Again, this is not merely my opinion, it has been spelled out in detail by the Environmental Protection Agency.

Currently, there are concerted and aggressive efforts to divide our community into two separate camps – those in favor of the LNG export terminal and those against it. Those in favor of the LNG project are engaging in increasingly sophisticated lobbying efforts aimed at portraying our citizenry as overwhelmingly in favor of the project. They are trying to accomplish this by passing resolutions, forming organizations, and various other public relations efforts, some involving red shoes.

In my estimation, these efforts are premature and counter-productive. If FERC provides an EIS late this year, and if the EIS is prepared in accordance with existing laws and regulations, all citizens would have the basis for making logical and rational decisions at that time as to whether to favor or oppose the project. Further, they would be much better prepared to participate fully in the later stages of the NEPA process leading ultimately to a Record of Decision.

Rather than subdividing into warring camps at this time, we and our community would be far better off if we all joined together and focused our time and effort now on fully participating in the NEPA process in order to insure that FERC furnishes us with an EIS that fully complies with the letter, spirit, and intent of NEPA. With a legitimate EIS in hand, we would each have the capability for developing a sound and logical basis for deciding either to favor or oppose the Jordan Cove LNG export proposal.