Public comment periods are usually dull affairs. But this summer, dozens of people rallied in front of the Medford, Oregon Department of Environmental Quality (DEQ) building to ceremoniously hand over boxes of comments urging the agency to deny an important certification to the Jordan Cove Energy Project. By the end of the Oregon DEQ comment period in late August, project opponents had flooded the agency with over 43,000 comments, citing threats to hundreds of rivers, streams, and wetlands and echoing the concerns of citizens all over the country who are opposing new fossil fuel projects.
Jordan Cove consists of a proposed liquefied natural gas (LNG) terminal and new pipeline that would run through Southwest Oregon. The terminal would be used to export LNG sourced from Colorado and Canada to Asian markets. Fossil fuel projects like Jordan Cove must be approved by the Federal Energy Regulatory Commission (FERC), but they must also obtain state certification and permits under Sections 401 and 404 of the Clean Water Act, along with a host of other approvals from state and county agencies. By granting Section 401 certification, the Oregon DEQ would signal it has “reasonable assurance” that the project won’t violate water quality standards.
That just isn’t possible, says Stacey Detwiler, conservation director for Rogue Riverkeeper, who submitted comments on behalf of over 30 groups and individuals detailing how the Jordan Cove project threatens water quality, shellfish habitat, endangered and threatened fish, drinking water supplies, recreation, and other “beneficial uses” of water in the region.
During construction of the pipeline, vegetation all along the 229-mile route would be stripped, says Detwiler. “Clear-cutting steep slopes will increase the likelihood of landslides and erosion,” she says, and removing streamside vegetation exposes streams to the sun as well as to sedimentation. When sediment pours into streams, it can clog fish gills, smother eggs, and reduce visibility. Warmer temperatures are especially harmful to salmon, steelhead, and trout, which are adapted to cold water.
According to US Army Corps of Engineers, the pipeline would impact waterways at 485 locations and in four watersheds throughout Southwest Oregon. A technique called horizontal directional drilling (HDD) would be used to take the pipeline under three major rivers — the Coos, Rogue, and Klamath — and to make two large crossings at the Coos Bay estuary near the LNG terminal. During HDD, a pilot hole is filled with drilling fluid to keep it from collapsing. But “frac-outs” — unintentional releases of mud and drilling fluid which occur when the drilling hole is overpressurized — can smother vegetation, fish eggs, and other organisms near the drilling sites.
In a previous application to FERC, the company — the Pembina Pipeline Corporation — rejected using HDD to cross the estuary, citing the length of the crossing, underground topography, and the presence of potentially unstable soils as factors that make the process riskier. Instead, they initially planned to cross the estuary just once, using the “wet open-cut” method that involves drilling across the waterbody while water is still flowing.
“First they were saying that HDD is not feasible; now they’re saying it is, but they’re relying on the same set of geological [test] bores,” says Courtney Johnson, a lawyer for Crag Law Center, which represents conservation groups on land use issues in Oregon. “The creation of the LNG terminal will fundamentally reshape the bay,” adds Johnson.
Creating the access slip and terminal on the North Spit of the Coos Bay estuary, as Pembina has proposed, would require scooping out 5.7 million cubic yards of material — over half a million dump-truck loads. The existing navigation channel through the estuary would be widened, converting high-quality shellfish habitat into less productive deep water zones, and the presence of LNG tankers would limit access to boaters — an important public trust right.
Nevertheless, Coos County public officials favor the project, seeing it as an economic boon for the region. And in August 2016, the county granted Pembina a conditional use permit for the LNG terminal, even though the local permit was based on a previous project application that FERC rejected earlier that year.
“[The company’s] strategy has been to seek approval for small chunks of the project, so as to not trigger one robust review,” says Johnson.
Last November, Crag Law Center appealed to the Oregon State Land Use Board of Appeals (LUBA) on behalf of the Oregon Shores Conservation Coalition, arguing that the county did not adequately consider the impacts of the project and did not demonstrate substantial public benefit. LUBA sided with Oregon Shores on six of seven counts, effectively nullifying the local land use permit. Pembina will likely submit a new application with the county in 2019.
Incidents related to other pipeline projects around the country validate the concerns of water watchdogs, tribes, and private landowners opposed to the Jordan Cove project. On the East Coast, the Rover Pipeline — which transports natural gas from the Marcellus and Utica shale deposits in New York, Pennsylvania, West Virginia, and Ohio to US and Canadian markets — has been plagued with spills. The State of Ohio has sued the company for the illegal discharge of drilling fluids and for harming a wetland that requires the state’s highest level of protection, and the West Virginia Department of Environmental Protection has served the company with multiple notices of violation for its failure to protect water quality, as required by state permits for the project. In Lebanon County, Pennyslvania, while constructing the Mariner East 2 natural gas pipeline that will transport LNG from the Marcellus and Utica deposits to Pennsylvania, Sunoco racked up at least 78 violations for polluting wetlands and creeks and contaminating private drinking water wells.
Projects such as these have seen fierce local resistance. But it was the unyielding stance of the Standing Rock Water Protectors in North Dakota, who protested the Dakota Access pipeline on the grounds that it could contaminate their drinking supply, that brought these battles into national focus two years ago.
“Standing Rock really woke people up, says Detwiler. “People have been coming out of the woodwork to protest these projects.”
In Oregon, private landowners, tribes, fishing groups, and conservation organizations have coalesced into a broad coalition opposing the Jordan Cove project, which FERC has rejected twice, most recently in March of 2016 on the grounds that benefits of the project did not outweigh the potential for adverse impacts on local communities.
Despite the FERC rejections, Pembina hasn’t given up on the project. “The project keeps changing,” says Robyn Janssen of Rogue Riverkeeper. “This time around their tactic is to try to get state permits first.” A rejection at the state level would reinforce the power of states to stop fossil fuel projects, even when they’re approved by FERC. In 2016, the New York Department of Environmental Conservation (DEC) denied water quality certification for the Constitution pipeline, and Washington State’s Department of Ecology denied 401 certification for a coal terminal last year.
Not surprisingly, some people in Washington, DC would like to limit states’ ability to stymie these projects. “We’re seeing efforts to roll back 401 authority for states,” says Detwiler. A group of Republican senators led by John Barrasso (R-Wyoming) introduced the Water Quality Certification Improvement Act of 2018 this summer, which would change the Clean Water Act by limiting the scope of what the state can consider in its review.
Meanwhile, since the Oregon DEQ comment period closed, the agency sent Jordan Cove a formal request for additional information about the project. In response, Jordan Cove withdrew and resubmitted its application to the agency, effectively re-setting the clock for the review period. This move does not affect the thousands of public comments already submitted.
And will these comments make a difference? Probably, says Detwiler. “But we’re also leveraging public perception,” she says. “That’s what’s really important.”