Protecting Water Quality: Challenging Offshore Carbon Emissions

1. Water Quality Protection and Energy Exports: A Proxy Battle Over Offshore Carbon Emissions? Melissa Powers Associate Professor of Law Lewis & Clark Law School

2. 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?

3. Energy Export Proposals

4. Energy Export Proposals

5. Energy Export Proposals

6. Energy Export Proposals

7. Energy Exports are Increasing

8. Energy Exports are Increasing

9. Climate change implications

10. Water Quality and Fossil Fuel Exports: The LNG Import Story

11. 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]”

12. 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

13. 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

14. Water Quality and Fossil Fuel Exports: The LNG Import Story • LNG import terminals: water quality triggers • Coastal Zone Management Act consistency requirement

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. Why the Local Focus? • Established legal regime • Clear(ish) role for states • Local concerns more likely justiciable • Article III standing

22. 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

23. 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

24. Risks of Making Energy Exports a Local Concern • Energy exports = emissions outsourcing

25. Risks of Making Energy Exports a Local Concern • We cannot avoid the worst impacts of climate change unless we address fossil fuel exports

26. 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

27. 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.