LB LNG Nat'l Fallout: Four CA Congressmembers + 14 Others File "Friend of the Court" Brief, Urging Fed'l Court To Allow State Regulatory Agencies Role in LNG Siting Issues
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(January 11, 2005, updated) -- In a case stemming from a proposal to build an 80+ million gallon Liquefied Natural Gas (LNG) facility roughly two miles from downtown LB in the Port of LB, eighteen members of Congress from coastal areas -- including four from CA -- filed an amicus curiae ("friend of the court") legal brief today (Jan. 11) urging that verbiage inserted in a House-Senate conference committee report accompanying an omnibus spending bill not be interpreted to give the Federal Energy Regulatory Commission (FERC) exclusive power to approve locating Liquefied Natural Gas (LNG) facilities.
Four CA members of the House of Representatives signed the brief: Rep. Lois Capps (D-CA), Rep. Sam Farr (D-CA), Rep. Hilda Solis (D-CA) and Anna Eshoo (D-CA).
Others signing were Sen. Edward Kennedy (D-MA), Sen. Jack Reed (D-RI), Rep. Barney Frank (D-MA), Rep. Edward Markey (D-MA), Rep. William Delahunt (D-MA), Rep. Stephen Lynch (D-MA), Rep. Michael Capuano (D-MA), Rep. James McGovern (D-MA), Rep. Michael Michaud (D-ME), Rep. Patrick Kennedy (D-RI), Rep. James Langevin (D-RI), Rep. Timothy Bishop (D-NY), Rep. Steve Israel (D-NY) and Rep. Rosa DeLauro (D-CT).
The Port of LB, which is not a party to the lawsuit, effectively triggered the federal court case by processing the application of Mitsubishi subsidiary "Sound Energy Solutions" to build and operate the LNG facility...even though SES hasn't sought approval from from the CA Public Utilities Commission.
CPUC says SES is required to seek and obtain CPUC approval under CA law...but in 2004, FERC declared that a 1938 federal law gives it exclusive authority to decide safety and siting issues for LNG facilities like the SES proposal. FERC said CPUC doesn't have legal authority over the LB LNG proposal's safety and siting issues and said SES doesn't need CPUC's permission.
CPUC has sued FERC in federal court to overturn FERC's claim of exclusive jurisdiction. The Friend of the Court brief, filed by the 18 Congressmembers in support of CPUC, was submitted by attorney Cory Briggs of the Briggs Law Corporation in Upland, CA. It states in part:
...If there were an accidental release of LNG or a terrorist attack caused the release of LNG, it could potentially be disastrous for the people and businesses in close proximity to LNG facilities. Consequently, state governments, which have historically protected the health and safety of their citizens, should have a say in the siting of a proposed LNG project and should not be preempted by the FERC.
At a minimum, there needs to be very careful analysis by the FERC,
Congress and state and local governments on the siting of proposed LNG facilities.
Unfortunately, the FERC has refused to set LNG proceedings for hearings, which
has shortchanged its analysis and prevented meaningful participation by other
parties. Similarly, the last minute attempt by certain conferees to slip language
about LNG siting into H.R. Report No.1 08-792, subverts the legislative process.
To deprive or severely limit the participation of interested parties, particularly the
ones most affected by a proposed site, is contrary to the public interest...
The FERC's decision to proceed in this case and other cases across the nation without a
hearing, where other expert witnesses, besides the project sponsor's witnesses, may
also be heard, needlessly endangers people and businesses in the proximity of the
proposed site for the LNG facilities. This is particularly true in a case, such as the
present one, where the proposed LNG project would be in a densely populated
area. The FERC's orders should be reversed...
The LB case has nationwide implications because if FERC's position were upheld in court, it could effectively strip state bodies across the country of regulatory authority over LNG safety and siting issues.
In late 2004, as previously reported by LBReport.com, members of a House-Senate conference committee said in non-statutory report language that they agree with FERC's position that CPUC and similar bodies in other states do not have LNG plant regulatory authority, preempted by federal law.
Congressman Frank led the campaign to file the amicus curiae brief and said in a written release:
Most Federal judges will understand that a provision that is simply slipped into a report on a bill in this way should have no legal bearing in a lawsuit, and is nothing more than the opinion of a few Members who were involved in drafting the report.
On the other hand, there is always a possibility that the provision could be given some weight as part of an overall ruling. If that were to happen in the California case, it could make it harder to ensure that local and regional safety concerns about other LNG proposals are fully taken into account. This includes the ill-advised plan to establish an LNG plant in Fall River, Massachusetts, which many of my Congressional colleagues from the state join me in opposing. The brief we have submitted today will help prevent the appropriations language from being misused in California, Massachusetts and anywhere else that an LNG plant is under consideration.
Congressman Ed Markey added:
When it comes to the siting of new LNG facilities, the Bush Administration favors weak federal rules and the preemption of any stronger state LNG siting safety requirements.
They can't have it both ways. While my 1979 LNG siting bill clearly envisioned a federal role in the siting of new LNG facilities, it also directed that such facilities be remotely located. Unfortunately, the Transportation Department and FERC have failed to follow that directive. At the same time, my bill never preempted State public safety and emergency response authorities, reflecting Congress' view that State Governments needed to be able to take action to protect their populations from hazards represented by proposals to site new LNG facilities in densely populated urban areas. The amicus brief that we've filed reflects Congressional support for retention of such authorities by the States.
Press spokespersons in the offices of Congressman Dana Rohrabacher (R., HB-LB-PV), whose district includes the Port of LB, and Congresswoman Juanita Millender-McDonald (D., Carson-LB) whose district adjoins the Ports and includes roughly 80% of LB, declined immediate comment having not yet reviewed the court filing.
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