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?
  • 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 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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