Water quality protection and energy exports a proxy battle o ver offshore carbon emissions
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Water Quality Protection and Energy Exports: A Proxy Battle O ver Offshore Carbon Emissions? PowerPoint PPT Presentation


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Water Quality Protection and Energy Exports: A Proxy Battle O ver Offshore Carbon Emissions?. Melissa Powers Associate Professor of Law Lewis & Clark Law School. Energy Exports: The Local Battle v. the Global Debate?. Pacific Northwest: Locus of fossil fuel imports Opposition:

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Water Quality Protection and Energy Exports: A Proxy Battle O ver Offshore Carbon Emissions?

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Water quality protection and energy exports a proxy battle o ver offshore carbon emissions

Water Quality Protection and Energy Exports: A Proxy Battle Over Offshore Carbon Emissions?

Melissa Powers

Associate Professor of Law

Lewis & Clark Law School


Energy exports the local battle v the global debate

Energy Exports: The Local Battle v. the Global Debate?

  • Pacific Northwest:

    • 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?


Energy export proposals

Energy Export Proposals


Energy export proposals1

Energy Export Proposals


Energy export proposals2

Energy Export Proposals


Energy export proposals3

Energy Export Proposals


Energy exports are increasing

Energy Exports are Increasing


Energy exports are increasing1

Energy Exports are Increasing


Climate change implications

Climate change implications


Water quality and fossil fuel exports the lng import story

Water Quality and Fossil Fuel Exports: The LNG Import Story


Water quality and fossil fuel exports the lng import story1

Water Quality and Fossil Fuel Exports: The LNG Import Story

  • 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]”


Water quality and fossil fuel exports the lng import story2

Water Quality and Fossil Fuel Exports: The LNG Import Story

  • LNG import terminals: water quality triggers

    • Clean Water Act: Section 404 dredge-and-fill permits


Water quality and fossil fuel exports the lng import story3

Water Quality and Fossil Fuel Exports: The LNG Import Story

  • LNG import terminals: water quality triggers

    • Clean Water Act: Section 404 dredge-and-fill permits

      • Army Corp of Engineers operates Section 404 program

      • 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


Water quality and fossil fuel exports the lng import story4

Water Quality and Fossil Fuel Exports: The LNG Import Story

  • LNG import terminals: water quality triggers

    • Coastal Zone Management Act consistency requirement


Water quality and fossil fuel exports the lng import story5

Water Quality and Fossil Fuel Exports: The LNG Import Story

  • LNG import terminals: water quality triggers

    • 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 protection

      • Federal permit applicants must demonstrate consistency with state coastal plans

        • State objection will kill project unless federal government overrides


Water quality and fossil fuel exports the lng import story6

Water Quality and Fossil Fuel Exports: The LNG Import Story

  • 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


Water quality and fossil fuel exports the lng import story7

Water Quality and Fossil Fuel Exports: The LNG Import Story

  • What happened in Oregon?

    • LNG import terminal proposed on Columbia River inland from Astoria

    • Astoria is a major fishing community

    • = alliance of environmental groups, landowners, and fishermen opposed terminal


Water quality and fossil fuel exports the lng import story8

Water Quality and Fossil Fuel Exports: The LNG Import Story

  • What happened in Oregon?

    • Facility would have required 404 permits to fill in salmon rearing habitat

    • Facility triggered CZMA consistency requirement

      • 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


Water quality and fossil fuel exports the lng import story9

Water Quality and Fossil Fuel Exports: The LNG Import Story

  • Ultimately, terminal developers went bankrupt

    • Proposal died

  • Even if it hadn’t, more litigation would have ensued


Water quality and fossil fuel exports water quality laws

Water Quality and Fossil Fuel Exports: Water Quality Laws

  • 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 approval

  • In addition

    • Coal dust CWA discharge law suit

      • Unpermitted discharges without NPDES permits

      • Governors have veto authority over non-LNG terminals


Why the local focus

Why the Local Focus?

  • Established legal regime

    • Clear(ish) role for states

    • Local concerns more likely justiciable

      • Article III standing


Why the local focus1

Why the Local Focus?

  • 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 quality

    • Promise of cheap energy becomes irrelevant (or undermined) with exports

    • Local culture tends to be strongly pro-environment


Risks of making energy exports a local concern

Risks of Making Energy Exports a Local Concern

  • Not all local governments will oppose exports

  • We are avoiding the broader discussion of climate change

    • Current accounting: countries responsible for direct emissions

    • Energy exports = emissions outsourcing


Risks of making energy exports a local concern1

Risks of Making Energy Exports a Local Concern

  • Energy exports = emissions outsourcing


Risks of making energy exports a local concern2

Risks of Making Energy Exports a Local Concern

  • We cannot avoid the worst impacts of climate change unless we address fossil fuel exports


Risks of making energy exports a local concern3

Risks of Making Energy Exports a Local Concern

  • 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


So what to do

So what to do?

  • 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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