Beyond Procedural Indignity, Substantive Ire
(May 26, 2005) -- For more than two years, like a LB version of Cassandra, the staccato, insistent voice of Bry Myown has tried to alert LB neighborhoods and city officialdom to potential consequences of a proposal to put 80+ million gallons of Liquefied Natural Gas in the city's Port, roughly two miles from downtown LB.
Ms. Myown, formerly an aide to then-Councilman Alan Lowenthal, mastered mind-numbing LNG factoids and archane legalisms. She expended countless hours, efforts and resources without grants, without assistance...and often without acknowledgment.
On May 24, 2005, with the Council Chamber overwhelmingly filled with opponents of the LNG project, a bizarre maneuver blocked the public from addressing and the Council from hearing the first agendized item seeking explicit Council policy direction on the LNG proposal since it first appeared in 2003.
Ms. Myown returned home and typed an email to Councilmembers. She cc'd us. We post it below. It speaks for itself. (Bracketed material is by us for clarity; emphasis is in the original.)
I am writing to express my outrage about your cancellation of last night's agenda item regarding your agreement with Sound Energy Solutions that has facilitated its efforts to site a liquefied natural gas terminal at the Port of Long Beach and preempt local jurisdiction. You are well aware that the U.S. Senate will likely have enacted new federal legislation before your June 21 hearing [a date announced by Mayor O'Neill without explanation on May 24], and I demand that you call a Special Meeting to consider the issue immediately.
While Special Meetings are unusual, the law allows you to convene them. Two memorable Special Meetings within my memory include the meeting in which you dismissed City Manager Henry Taboada and the meeting you scheduled to coincide with memorial services for a local 9/11 victim in order to facilitate the Queensway Bay land swap (that was recently overturned by the Third Appellate Division). Surely, losing local authority over a land use capable of causing second degree burns within 30 seconds to humans a mile away is a matter of at least equal urgency with obtaining state permission to trade our beachfront for a mall.
You are collectively and directly responsible for having threatened us with the most extraordinary public safety concerns imaginable and our loss of jurisdiction over them for two years. The following failures are items on which any council member who truly had concerns or questions would have acted:
- The Port's letter of intent with SES explicitly conditioned terminal construction on your finalization of pipeline and gas purchasing agreements. Had you not entered into negotiations with SES the project would have immediately died.
- In May, 2003, you voted to authorize your negotiations with SES in 87 seconds. As you now claim to have unanswered questions, perhaps the time to have raised them was then.
The applicant and its attorneys filed numerous prefiling and application submissions arguing for exclusive federal jurisdiction; in fact, FERC relied in large part on your applicant's arguments to strip you of authority. Your Harbor Commissioners processed these filings without protest from you.
- Your controls over port operations include appointing Harbor Commissioners and approving Harbor budgets. You have appointed two Harbor Commissioners without questioning them concerning LNG and approved two Harbor budgets without objection since the project's inception.
- Your controls over port operations also include placing charter amendment initiatives on the ballot to change any aspect of harbor operations at any time. You have not done this.
You may remove Harbor Commissioners for cause. Your Harbor Commission failed to enforce California utilities law that requires a CPUC permit for LNG facilities, and it violated CEQA law by making itself the lead agency when CEQA makes the highest state permitting authority the lead agency for environmental review. As no appellate court has ever held these laws unconstitutional or preempted, your Harbor Commission's failure to enforce them was grounds for removal that you should have exercised.
- FERC asserted exclusive jurisdiction in March, 2004. You did not object.
- No LNG terminal can operate without an outflow pipeline that is the subject of your negotiations. In its June 2004 Response, FERC asserted multiple ways it might control the outflow pipeline. Yet when SES applied to build the pipeline in case its negotiations with you failed, you did not object.
- In July, 2004, your attorney's memo outlined that you could cancel your MOU with Mitsubishi and that you could take a position on the project. Although Councilmembers Lowenthal and Baker agendized doing that, they removed their item 3 days later, allegedly because the agenda was "crowded," and promised to bring it back immediately but never did. A majority of you have remained silent on other occasions when council discussion has occurred, and some of you have misstated the contents of the attorney memo in those discussions.
- CARE and CPUC filed suit against FERC over jurisdiction in August, 2004. You did not join as amici [friends of the court] or even pass a resolution in support.
- You took no position on federal authority save regarding the narrow issue of eminent domain when it arose in Senate Committee. (In fact, FERC has consistently argued in its Orders and in litigation that it does not need statutory authority for eminent domain because it can exercise the statutory powers of lesser agencies.) Your resolution regarding eminent domain was not even mailed to legislators for several weeks after your vote.
You took no position on provisions of the House Energy Bill until the night before, and faxed it to Congress on the day of, the Congressional floor vote.
You lobbied Senator Feinstein for assistance. Last Friday, she introduced legislation for concurrent state-federal authority, and your action last night made a mockery of it.
The idea that an agenda amendment should have called for "an abundance of caution" about a council vote might be supportable (although it is certainly laughable in the context of admitting that a majority of the members of the legislative body determined out of public view to take an action). However, the idea that agenda notice should have silenced the public is bogus. Once last night's item was agendized, you were obligated to hear any members of the public who cared to address it, whether you chose to deliberate or not. As you have apparently been unable to get whatever questions you will not discuss on the record answered for two full years, perhaps listenting to the public would be enlightening.
In any case, if you do indeed have questions, the safer course would be to cancel negotiations. Once you are satisfied, there will presumably be no shortage of applicants willing to bring you LNG if you still desire it. If you do not, however, you will have eliminated your ability to do anything about it.
Therefore, call a Special Meeting immediately.
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