Water Quality Protection and Energy Exports

Melissa Powers
Associate Professor of Law
Lewis & Clark Law School
 Pacific
• Locus of fossil fuel imports
 Opposition:
• Reliance on water quality statutes to prevent
construction of facilities
• LNG terminal fights as case study
• Upcoming water quality fights
 What
about the global discussion about
climate change?
 2005
Energy Policy Act:
• FERC has “exclusive” authority over LNG
terminal siting
• Conditioned on compliance with
 Clean Water Act
 Coastal Zone Management Act
 Clean Air Act
• “[N]othing in this Act affects the rights of States
under the [CZMA, CWA, or CAA]”
import terminals:
water quality triggers
• Clean Water Act: Section 404
dredge-and-fill permits
import terminals: water quality
• Clean Water Act: Section 404 dredge-and-fill
 Army Corp of Engineers operates Section 404
 404 permits involve
 Appropriate site selection (aquatic-dependent use)
 Public interest review
 Section 401 Certification = state water quality standards
 Section 401 certifications issued by states
import terminals:
water quality triggers
• Coastal Zone Management
Act consistency requirement
import terminals: water quality
• CZMA consistency
 States develop and receive federal approval of
Coastal Zone Management Plans
 Blueprints for protecting “coastal zone”
 State discretion over scope of coastal zone + degree of
 Federal permit applicants must demonstrate
consistency with state coastal plans
 State objection will kill project unless federal government
 Water
quality statutes give states broad
authority (notwithstanding federal
preemption over LNG terminals)
• States develop water quality standards*
 States issue/deny water quality certifications
• States develop Coastal Zone Management Plans*
 States issue/deny consistency determinations
• *Federal authority to reject standards and plans
that do not meet federal floor
 No preemption over more stringent standards
 What
happened in
• LNG import terminal
proposed on Columbia
River inland from Astoria
• Astoria is a major fishing
• = alliance of environmental
groups, landowners, and
fishermen opposed
 What
happened in Oregon?
• Facility would have required 404 permits to fill in
salmon rearing habitat
• Facility triggered CZMA consistency
 Oregon’s Coastal Zone Management Plan requires
consistency with local land use laws in coastal zone
 County that wanted LNG amended its land use plans
to accommodate LNG
 Oregon Court of Appeals reversed = no authorization
to build
 Ultimately, terminal
developers went
• Proposal died
 Even
if it hadn’t, more litigation would
have ensued
 The
same legal framework will apply to
most exports
• Terminal construction = dredge and fill = need
CWA Section 404 permits
 Same with pipelines
• Terminal construction will require CZMA
 In addition
• Coal dust CWA discharge law suit
 Unpermitted discharges without NPDES permits
 Governors have veto authority over non-LNG
 Established
legal regime
• Clear(ish) role for states
• Local concerns more likely justiciable
 Article III standing
 Local
benefits in dispute – particularly
where exports involved
• “Jobs v. environment” debate less potent where
 Most jobs are outside the region
 Local fishing and tourism depend on good water
• Promise of cheap energy becomes irrelevant (or
undermined) with exports
• Local culture tends to be strongly proenvironment
 Not
all local governments will oppose
 We are avoiding the broader discussion
of climate change
• Current accounting: countries responsible for
direct emissions
• Energy exports = emissions outsourcing
 Energy
exports = emissions outsourcing
 We
cannot avoid the worst impacts of
climate change unless we address fossil
fuel exports
 The
legal framework to address the
impacts of fossil fuel exports on climate
change needs reform
• Article III standing
• Scope of environmental review
• Border tax adjustments
 Local
efforts should continue
• Local communities have a stake in energy
exports and should use whatever tools they can
 But
we need to engage in a broader
discussion about the climate change
impacts of exports and develop
enforceable regulatory tools to address
these impacts.

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