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LNG (the sequel) Ignites County Hearing by Cassandra Profita The Daily Astorian, July 12, 2009

'You're not here to apply the will of the people,' says lawyer

After five hours of testimony on the Bradwood Landing liquefied natural gas project, Clatsop County commissioners called it quits Wednesday without taking a vote on the two land-use issues remanded to them by the Oregon Land Use Board of Appeals.

The board scheduled another meeting for 6 p.m. July 16, to deliberate.

About 75 people flooded the Judge Guy Boyington Building for the remand hearing Wednesday and attempted to follow a strict set of procedures outlined by the county board and its counsel. Most of the testimony came from project opponents, who urged the board to reject the solutions proposed by Bradwood Landing project developer NorthernStar Natural Gas Inc. of Houston.

The county commission has been asked to reconsider its findings on the size of the Bradwood Landing LNG project and the degree to which the project will "protect" fish habitat and traditional fishing areas. Last year, in approving zone changes at the project site 20 miles east of Astoria on the Columbia River, the county board agreed the Bradwood project is "small to moderate" in scale and adequately "protects" habitat and fishing grounds. But project opponents appealed the board's decision, and LUBA ruled those two decisions did not satisfy state land-use laws. LUBA said the county wrongly used the law dictionary definition of "protect" to reach its conclusion instead of the state land-use planning definition, and it incorrectly used the amount of fill involved in the project to determine whether the project fit within the "small to moderate" in scale limitation for the Bradwood site.

Satisfying state law

At the remand hearing, NorthernStar Natural Gas Inc. said the county can satisfy state law with a few adjustments to its findings, and the company's attorneys Michelle Rudd and Ed Sullivan presented a set of supplemental findings to the board. The new findings show that the project still "protects" fish habitat and fishing areas using the correct definition of the word because the company is taking protective measures to minimize and mitigate the harm its development will cause. The new definition the company is using for "protect" is "to save or shield from loss, destruction or injury or for future intended uses."

With regard to the size of the facility, the company used a different set of measures - including the amount of land occupied by the LNG terminal compared with the Wauna Mill and the amount of dredging proposed compared with other dredging projects on the Columbia River like the U.S. Army Corps of Engineers' channel deepening - to argue the LNG project is "small to moderate" in scale and does not exceed what land-use laws intended for the Bradwood site.

Sullivan said many of the environmental protections required by state land-use laws are inherent in the county's planning codes, such as requirements to dredge during the in-water work window when it will cause the least amount of damage to fish in the river.

Protecting fish

Commissioner Patricia Roberts asked when the company would address the question of screening the ballast water taken in by LNG tankers to protect fish at the terminal site. Rudd said that issue would be addressed in the company's mitigation plan, which is required but has yet to be submitted to the county.

Commissioner Dirk Rohne asked whether the company's findings concluded that a net loss and destruction of habitat is acceptable under land-use law as long as some protective measures are taken.

"Some loss is possible," said Rudd. "It's not that every individual fish will be protected, it's the habitat as a whole."

Brett VandenHeuvel, attorney for the appellant Columbia Riverkeeper, adamantly opposed the company's findings and asked the county commissioners to think for themselves. "I'm concerned that the official position of this county is being spoon-fed by Bradwood Landing," he said.

Scale of project

VandenHeuvel called the company's claim that the project is small to moderate in scale "laughable" and said it "doesn't even pass the straight-face test."

He said the county should include the proposed 46 acres of dredging for the LNG delivery tankers' turning basin in the consideration of project scale.

He went on to cite numerous sources, including the county's staff, who have sized up the proposal and concluded it is large. He quoted a letter from the county commission itself to the Federal Energy Regulatory Commission that called the project "unprecedented" in scale.

"It can't be both small to moderate and unprecedented in scale," he said. Project opponents lined up to echo VandenHeuvel's sentiments, expressing outrage that the board would accept the company's claims. They proposed measurements the county could use to size up the Bradwood project, such as the $8 million in property taxes it would generate, which would make Bradwood Landing the county's largest taxpayer by far.

"Northern Star would have you believe up is down, left is right and big is small," said Birkenfeld resident Marc Auerbach. "The activity of developing, constructing and operating a liquefied natural gas facility is by every measure large in scale and thus incompatible with siting at Bradwood."

Flaring tempers

Tempers flared at times when opponents clashed with Bradwood Landing project developers and the quasi-judicial rules Commission Chairman Jeff Hazen was enforcing.

The disagreements reached a crescendo toward the end of the afternoon, when NorthernStar attorney Ed Sullivan told county commissioners that their job in addressing the LUBA remand was not to do what "the clappers" told them to do, referring to the opponents in the audience. "Your job is to apply your own plan," he said. "You're not here to apply the will of the people."

The room erupted with shouts and moans, and several opponents proceeded to file objections to his statements on the record.

The commission spent the first hour of the meeting fending off suggestions that the three longest-standing board members - Roberts, Hazen and Ann Samuelson - were biased to prejudge the case on the basis of their encounters with outside information.

All the commissioners except Rohne reported ex-parte contacts with NorthernStar employees, supporters and opponents of the Bradwood project. LNG opponents in the audience pointed out several meetings they'd seen between Samuelson and Bradwood Landing Community Liaison Pete Hackett. They asked about why Hazen appeared at a hearing for House Bill 3058, a bill that was supported by NorthernStar. They asked why Samuelson and Hazen were thanked for their work on the company's land-use application by a board member on the Federal Energy Regulatory Commission when they traveled to Washington, D.C., for the preliminary approval of the Bradwood project.

After those comments were exhausted, Roberts, Hazen and Samuelson stated they could still be impartial judges of the land-use decision.