Appeals court refuses to overrule Jordan Cove LNG approval

A federal court has refused to summarily overrule the federal approval given to a project that would export LNG from the proposed Jordan Cove LNG facility at Coos Bay, Ore. The court also refused to stay the project approval while court challenges are argued.

The decisions mean five consolidated lawsuits will go forward in the US Court of Appeals for the District of Columbia Circuit before judges Karen Henderson, David Tatel, and Gregory Katsas. As of early Oct. 12, a briefing schedule had not yet been set.

The Federal Energy Regulatory Commission (FERC), using its authority under the Natural Gas Act, approved in March a certificate of public convenience and necessity for the Pembina Corp. export facility and 229-mile Pacific Connector gas pipeline.

The appeals court issued its order Oct. 6 denying a motion for summary vacatur of FERC’s approval.

“The merits of the parties’ positions are not so clear as to warrant summary action,” the court said.

Plaintiffs also had requested the court issue a stay blocking FERC’s certificate of public convenience and necessity for the project. A stay could prevent the start of eminent domain proceedings for construction of the pipeline across private property while the case lingers in the federal court.

“Petitioners have not satisfied the stringent requirements for a stay pending court review,” the court said.

Landowners had requested the vacatur and stay. Their case, Deborah Evans v. FERC, involves 30 property owners along the pipeline route and serves as lead case in the fight.

Two lawsuits against FERC’s project approval were launched by environmental groups, one by tribal groups, and one by Oregon. Plaintiffs charged the project needed more environmental analysis, needed clear market support, and should not have received federal approval without at least two important state approvals.

Oregon has denied the project a Clean Water Act water quality certification and a “consistency certification” under the Coastal Zone Management Act, a law that requires federal actions to be consistent with state coastal management plans.

As for market support, Pembina has not yet announced firm contracts with LNG buyers, raising questions about FERC’s finding of public need.