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?. 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

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? O

  • 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?










Water quality and fossil fuel exports the lng import story1
Water Quality and Fossil Fuel Exports: The LNG OImport 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 OImport 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 OImport 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 OImport 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 OImport 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 OImport 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 OImport 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 OImport 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 OImport 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 O

  • 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? O

  • Established legal regime

    • Clear(ish) role for states

    • Local concerns more likely justiciable

      • Article III standing


Why the local focus1
Why the Local Focus? O

  • 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 O

  • 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 O

  • Energy exports = emissions outsourcing


Risks of making energy exports a local concern2
Risks of Making Energy Exports a Local Concern O

  • 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 O

  • 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? O

  • 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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