‘It’s a Proud Day’: Oregon Landowners Celebrate Demise of LNG project, Even as Legal Questions Go Unanswered

Dec.6, 2021

A coalition of Oregon landowners, environmental groups, and Native tribes fended off Jordan Cove for more than a decade. But the legal implications of the project’s demise outside of Oregon are unclear.

Oregon’s 15-year battle against the Jordan Cove LNG project quietly came to an end on December 1, bringing relief to dozens of landowners that live in the path of the proposed project. 

It was an anti-climactic end to one of the most controversial fossil fuel projects ever proposed in the Pacific Northwest. Pembina, the backer of Jordan Cove LNG and the Pacific Connector gas pipeline that would have fed the export terminal, submitted a request to the Federal Energy Regulatory Commission (FERC) to cancel its authorization, citing the company’s inability to obtain state environmental permits. 

The decision was welcomed by a broad coalition of environmental, tribal, and landowner groups. “This is amazing news. We knew the project wasn’t viable because of all the risks that it brought to our communities,” said Chairman Don Gentry of the Klamath Tribes. “I am thankful for the cooperative effort to bring about this victory. This is a significant relief for our communities who have been so concerned about the impacts for our members and the region as a whole.”    

The cancelation of Jordan Cove wasn’t exactly a surprise. The project faced a long list of obstacles, any one of which could have kept it from moving forward. The project never signed up any customers for its gas, so the market viability was unproven. It also lacked several local and state-level environmental permits. Earlier this year Jordan Cove went to the U.S. Department of Commerce in a last-ditch effort to get the federal government to sign off on an unusual plan to bypass Oregon’s rejection of key environmental permits, but the federal government shot-down that plan. 

That left Jordan Cove with no pathway forward. In April, Pembina said the project was on “pause,” an indication that the project’s fortunes looked increasingly dim. 

But residents of southern Oregon were reluctant to celebrate until the project was officially put on ice. That came on December 1 when Pembina told regulators to cancel its permit. 

“We were just ecstatic. There was lots of screaming and yelling. It was pretty amazing,” Deb Evans, whose property stood in the way of the pipeline route, told DeSmog. She said that “gratitude and relief” were how she described the feeling among the group of landowners that have spent years trying to block the project, which would have crossed their land. 

Eminent Domain Questions Unanswered

Two days after Pembina’s decision to cancel its permits, Evans and her husband Ron Schaaf said they were still processing the news. “Most people are like ‘is it really dead?’ I guess when you’re fighting this long and this hard…we believe that it’s true, we think it’s really truly over, but you’re ramped up still,” Evans said. But she added: “We can say with confidence that it’s dead.”

Still, Evans and Schaaf said that there were some bittersweet feelings associated with how the project met its demise. By asking FERC to cancel the permit, Pembina may have successfully avoided having a federal court adjudicate many of the thorny legal questions associated with its original approval. 

As DeSmog reported last year, Evans and Schaaf, along with a group of landowners, sued FERC in the D.C. Circuit Court of Appeals in a case that carried great significance over how pipeline companies can use eminent domain authority — which Pembina was trying to do — to take private land for projects that have questionable public benefit. 

The case hinged on several issues, but one of the key questions was whether exporting gas overseas is in the public interest. Evans and her legal team continue to assert that under the Natural Gas Act, exporting gas does not clear the bar for public interest because it is not consumed in the U.S. The case of Jordan Cove is even less convincing given that the gas slated to be exported would have likely originated in Canada, not Oregon or even some other U.S. state, although the company asserts that some of the gas would come from Rocky Mountain states like Wyoming and Colorado.  

The public interest question is important because when FERC authorizes a project like Jordan Cove, the certificate also gives the company the right to use eminent domain to take land. The approval was especially outrageous to landowners given that the project still lacked key permits and faced long odds of ever moving forward. 

As Megan Gibson, an attorney at the Niskanen Center, which represented the landowners in the case, told DeSmog in November 2020: “Right now, this pipeline has the power to go into Oregon courts and start condemning land. And once they have possession of that land, that’s it. Even if the pipe doesn’t get built, they’re gonna have a permanent easement over these people’s land.” 

Despite the project being canceled, Evans and her legal team had wanted the D.C. Circuit to rule that gas for export is not in the public interest, and that FERC’s authorization was illegal. Such a decision, if it were to occur, could set a legal precedent and could go a long way to ending FERC’s pattern of rubberstamping LNG projects with dubious need and uncertain prospects. It would also curtail the gas industry’s abuse of eminent domain authority to take private land for questionable projects. 

“There’s some serious flaws right now in the way that FERC operates,” Evans said. “The [Atlantic Coast Pipeline] is a great example of that. PennEast is another example.” Both pipelines received FERC approvals – and the power of eminent domain – and were later canceled. In many cases, the companies involved can hold onto the land easements they obtained for the projects even though the pipelines will never be built. 

However, by having FERC cancel Jordan Cove’s certificate, as Pembina has requested, the highly-anticipated court case may simply go unresolved. “FERC will (presumably) ask the D.C. Circuit to remand the case back to the agency in order to vacate the certificate, and that will be the end of it,” David Bookbinder, chief counsel at the Niskanen Center, told DeSmog in an email. 

Still, even without a decision, the pipeline industry may not have the same ease with federal regulators as they have had in the past. The D.C. Circuit pushed back on FERC’s approval of Jordan Cove’s certificate during a hearing in October, appearing skeptical that exporting gas was in the public interest. That, along with the wave of pipeline cancelations and lawsuits, is forcing something of a culture shift at FERC. 

“[FERC] should know by now that this is a violation of constitutional rights for landowners,” Evans told DeSmog. “There is no way that you can issue a certificate under the circumstances they issued ours, and think that there’s not something wrong with the system.” 

In a separate case with some parallels, the same D.C. Circuit Court tossed out a FERC certificate for the Spire natural gas pipeline in Missouri, noting that the project never demonstrated it was needed and FERC didn’t do due diligence. 

“Aside from the Spire case, [Jordan Cove] is the single worst approval that FERC has ever done for a gas project,” Gillian Giannetti, an attorney at the Natural Resources Defense Council’s Sustainable FERC Project, told E&E News. “It’s an example of the lack of scrutiny that FERC has applied to these kinds of projects historically.”

Pembina obtained easements from dozens of landowners, and still holds onto them even now that the project is canceled. Evans said some Oregon landowners they spoke with are still uneasy about what that means for them going forward. 

“It’s off of our plate, and that’s really great. But we also believe industry benefited because the questions we raised were legit. Our lawsuit had some pretty serious accusations in it,” Evans told DeSmog. “Was it illegal that FERC approved it in the beginning? And is it true that the Natural Gas Act allows the use of eminent domain for export projects? And that won’t be answered now.” 

Evans added: “But, it’s a proud day, honestly, for Oregon and the people of Oregon who put a lot of blood, sweat, and tears into this.”

[Top photo: Activists protest Jordan Cove LNG in Salem, OR. June, 2016. Credit: Francis Eatherington (CC BY-NC 2.0)]