Violation of the National Environmental Policy Act or NEPA will feature prominently in this post so I encourage everyone to read Ron Sadler’s detailed explanation particularly as it relates to the Jordan Cove LNG export terminal as background for this piece.
Thanks to the gleeful optimism and insurgent “our community” marketing from BS Oregon an informal poll of downtown Coos Bay merchants indicates a seemingly widespread perception that Jordan Cove LNG is a done deal. “When the gas gets here, this town will be hopping,” gushed one shopkeeper. “Construction will start next year,” remarked another. “Thank goodness for Jordan Cove.”
While there is nothing wrong with unbridled enthusiasm or starting a group to promote a controversial project the lead permit agency, FERC, has yet to publish a draft EIS. Sadler explains -
An EIS is meant to “serve practically as an important contribution to the decision making 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 regulations at 1506.1 state that until a record of decision is issued, the federal lead agency shall insure that no action concerning the proposal “shall be taken which would limit the choice of reasonable alternatives”. At 1506.1b, it is stated that “If any agency is considering an application from a non-Federal entity and is aware that the applicant is about to take an action within the agency’s jursdiction that would (limit the choice of reasonable alternatives), then the agency shall promptly notify the applicant that the agency will take appropriate action to insure that the objectives and procedures of NEPA are achieved”.
In other words, the applicant must not engage in activities that prejudice the decision and NEPA requires federal agencies to consider reasonable alternatives to the proposed action, including the alternative of no action. Through its representatives and lobbyists, Jordan Cove Energy Partners is providing guidance, direction and leadership to BS Oregon to promote the project as the only alternative for achieving the general goals and proving a need beyond the aspirations of the proponents. Citizen and environmental groups regularly file and win federal lawsuits over provable NEPA violations. Lobbyist Ray Bucheger freely acknowledges that in addition to guidance and direction Jordan Cove or its parent company Veresen, Inc., provides funding for BS Oregon’s marketing campaign, a clear violation of NEPA.
…the Federal agency “must notify the applicant that the agency will take strong affirmative steps to insure that the objectives and procedures of NEPA are fulfilled. (Section 1506.1(b). These steps could include seeking injunctive measures under NEPA (which could include the agency) advising an applicant that if it takes such action the agency will not process its application.”
The roll out of the so called community enhancement plan that was developed in secret and would funnel public funds into private hands was revelatory for a number of reasons. One it again punctuates how little regard local civic leaders have for public input. It also demonstrates, and not for the first time, the risks of any one company/employer having undue influence over the aforementioned leaders.
Wouldn’t it be ironic if in their zeal to subvert public process, collect council resolutions, exaggerate jobs numbers, ignore the public cost of providing services to such a project as well as the risk and hazard of siting Jordan Cove LNG in a tsunami zone, all so select individuals can get their grubby little fingers on millions of public dollars in advance of an EIS, the BS Oregon steering committee inadvertently forced FERC to vacate the permit?
Note: Role of the NEPA process
Of course, an agency’s purpose and need statement cannot be defined so narrowly as to preclude consideration of reasonable alternatives to the proposed action.33 However, so long as it is reasonable, the agency may incorporate the proponent’s objectives into its purpose and need statement, thereby using the proponent’s goals to help define the range of alternatives. The Tenth Circuit has ruled, for example, that where “the action subject to NEPA review is triggered by a proposal or application from a private party, it is appropriate for the agency to give substantial weight to the goals and objectives of that private actor.”34 The D.C. Circuit has observed that “Congress did expect agencies to consider an applicant’s wants when the agency formulates the goals of its own proposed action.”35
At least one court – the Seventh Circuit – has ruled that the proponent’s objectives play a far more limited role in preparing the agency’s purpose and need statement and in defining reasonable alternatives. It has ruled that “the evaluation of ‘alternatives’ mandated by NEPA is to be an evaluation of alternative means to accomplish the general goal of an action; it is not an evaluation of the alternative means by which a particular applicant can reach his goals.”36 The Seventh Circuit has set aside an EIS that defined its purpose and need as the proponent’s objectives.37 And despite the rulings by the courts set forth in the preceding paragraph, CEQ guidance states that “[r]easonable alternatives include those that are practical or feasible from the technical and economic standpoint and using common sense, rather than simply desirable from the standpoint of the applicant.”38