The potential had remained that a Bradwood Landing liquefied natural gas terminal could be constructed at a proposed site 20 miles upriver from Astoria, Ore., but, in contrast, a pipeline to connect it to a transmission system could not legally be built.
Because of that disconnect, a U.S. Court of Appeals for the Ninth Circuit panel decided this week that a license permitting construction of both is invalid, and a legal challenge to that license is moot.
“In cases where intervening events moot a petition for review of an agency order, the proper course is to vacate the underlying order,” the March 3 opinion says. “Accordingly, we dismiss the petition as moot and vacate FERC’s September 18, 2008 order” that allowed, with conditions, the construction of the LNG terminal and pipeline.
A host of Pacific Northwest entities had challenged the construction license in the courts and throughout the Federal Energy Regulatory Commission licensing process. They include the states of Oregon and Washington, the Nez Perce Tribe, and a coalition of conservation and citizen groups (Columbia Riverkeeper, Sierra Club, Landowners and Citizens for a Safe Community, Wahkiakum Friends of the River, and Willapa Hills Audubon Society).
The petitioners said that the planned construction was in a significant, environmentally-sensitive area, and that it would affect the region’s land, water, fish, wildlife, recreation, and aesthetics, and create new risks to the safety of the region’s citizens.
FERC’s order incorporated two different authorizations. Under Section 3 of the Natural Gas Act FERC authorized Bradwood Landing LLC to site, construct, and operate a liquefied natural gas import terminal on the Columbia River shoreline in Oregon. FERC issued a Certificate of Public Convenience and Necessity under Section 7 of the NGA authorizing NorthernStar Energy LLC to construct and operate a natural gas pipeline that would connect the new Bradwood LNG terminal to the Pacific Northwest’s existing natural gas pipeline network. The pipeline would have traversed Clatsop and Columbia counties in Oregon, crossed the Columbia and proceed into Cowlitz County, Washington.
On May 4, 2010, however, the project backer sent out a press release that said it was "suspending" the development of the $650 million liquefied natural gas terminal.
Later in the day, the company behind the project, NorthernStar Natural Gas, Inc., and its subsidiary, Bradwood Landing filed for Chapter 7 total liquidation bankruptcy in U.S. District Court for the Southern District of Texas. NorthernStar headquarters in in Houston.
The press release blamed the suspension on a burdensome state and federal permitting process.
On November 5, 2010, another company, BL Credit Holdings, LLC purchased all permits and intellectual property owned by Bradwood at a foreclosure auction.
The states, tribe and groups that petitioned the Ninth Circuit to invalidate the FERC license wanted to make sure that BL Credit Holdings and anyone else could not proceed with the Bradwood project so they continued to push for a Ninth Circuit order vacating the FERC decision.
“While FERC may authorize a permittee to transfer a Section 3 permit to a new project proponent, the CPCN (the pipeline permit) ‘is not transferable in any manner,’” Wednesday’s Ninth Circuit opinion said in citing the NGA. “Once NorthernStar is liquidated in the bankruptcy proceeding, it will no longer exist….”
Petitioners were thrilled about the outcome.
"Bradwood LNG was a dominant environmental issue for 5 years and now it is officially over," said Brett VandenHeuvel, executive director of Columbia Riverkeeper. "For all the families who were threatened by LNG, their work to protect their livelihoods paid off."
The company had said the shipping terminal and its associated 36.3-mile pipleine would have provided 450 jobs during three years of construction and 65 permanent jobs. It claimed support from the Oregon AFL-CIO, The Columbia Pacific Building Trades Council, the Washington State Building and Construction Trades Council, the Oregon Machinists Council, the Washington Machinists Council, Carpenters Local 1707, the International Longshore Workers Union and the Steamship Operators Union.
But many, including the states of Oregon and Washington, treaty tribes, conservation and fishing groups and others feared the potential impacts on the environment, and on species such as salmon that rely on the estuary.
Two other controversial LNG proposals remain in Oregon - Jordan Cove in Coos Bay and Oregon LNG at the mouth of the Columbia River in Oregon. Both projects face strong opposition from fishermen, farmers, property owners impacted by the pipelines, and conservation groups.