Bill says feds can overrule states on LNG

AUGUSTA – Buried in the 3,300-page Omnibus Appropriations bill approved by Congress on Nov. 20 is a provision that says federal regulators have the power to overrule state and local officials in deciding where ships can deliver liquefied natural gas.

“I am really very concerned,” said Rob Gardiner, vice president of the Conservation Law Foundation, an environmental advocacy group with offices in Rockland and Boston. “The Federal Energy Regulatory Commission, unlike the federal EPA [Environmental Protection Agency], has never done a good job of environmental protection.”

Gardiner blasted Congress for making the change “in the dark of night” and said such actions will raise the level of public concern. He said it is important to have states comment on issues that are important to the states.

The change was made through a three-paragraph statement in the appropriations bill, which stresses that FERC should have control over the handling of permits for proposed LNG facilities.

“The Natural Gas Act of 1938 clearly pre-empts states on matters of approving and siting natural gas infrastructure,” states the new language.

The statement was introduced during a conference committee, in which lawmakers from the Senate and House ironed out differences over the appropriations bill. In this case the new language appears under the headline, “Federal Energy Regulatory Commission Salaries and Expenses.”

The provision states the FERC contention that it has “exclusive jurisdiction” over siting LNG facilities. It also states that the process for regulating facilities needs to consider the “national public interest” as opposed to the views of any one state.

“It is just not OK for the federal government to dictate and pre-empt and bully and preclude the states,” said Linda Godfrey, a coordinator with the Save Passamaquoddy Bay Alliance. The group was formed by Americans, Canadians and Passamaquoddys who oppose a proposal by the Passamaquoddy Tribe to locate a $300 million LNG terminal at Pleasant Point in Washington County. “Maine is a special place and we will fight to protect it from this.”

Godfrey said the group was gearing up for a battle against the project in front of state agencies, but now expects the battle will shift to the federal level.

Godfrey said the state should take a leadership role and challenge the federal government. She is concerned about the limits FERC puts on the hearing process, where public comments are limited to “certain people” and the opinions of some are ignored.

Rhode Island Attorney General Patrick Lynch is among a group of officials from that state who still hopes to rally enough support from U.S. representatives and senators, who return for another lame-duck congressional session next week, to attach an amendment striking the new language before President Bush signs the omnibus appropriations bill into law.

Gov. John Baldacci and other Maine officials, however, were just learning about the language in the bill this week, and had no immediate response about what action they might try to take. Baldacci has previously been quoted supporting the Passamaquoddy Tribe’s proposal because it could provide “a tremendous economic boost” to the area by providing good-paying jobs while bringing clean energy to Maine.

Ron Huber of Penobscot Bay Watch, a Rockland-based environmental activist group, said the action taken to get the language in the omnibus bill should not have been wholly unexpected. He said FERC indicated last spring it did not see a role for the states to play outside of the FERC process.

“The state may be knocked out of the water, so to speak, but there will still be the processes before the other federal agencies for groups to become involved,” he said.

Gardiner agreed and said the National Environmental Policy Act will still apply and groups opposing the siting of an LNG facility in Maine will have several opportunities to challenge the permits and licenses from the several federal agencies that will be involved.

“[But] the receptiveness of state officials to comments from the public is much better than that of FERC,” he said. “I think the public would be better served by more state involvement.”

Maine has had several proposals for LNG facilities, but none have actually filed for the necessary permits to be built. Voters in Harpswell blocked construction of a facility earlier this year after a contentious campaign there and Cianbro Corp. pulled plans for building an LNG terminal in Gouldsboro after residents there balked at the idea.

Besides the Passamaquoddy Tribe’s proposal, there also is one still floating for a facility on Sears Island in Penobscot Bay.

Much of the opposition to the facilities deals with safety issues and aesthetics.

The federal Department of Homeland Security has identified LNG ships as potential targets of terrorist attack, so the vessels must be escorted into port.

The ships are very large, requiring deep waters and wide approaches to a port. There also needs to be at least 250 acres available on shore to support the facility in which the liquid form of the fuel can be reconverted into gas. Such requirements and difficult tidal currents in some areas of the coast have eliminated several sites already.

Another key factor in finding an appropriate site for an LNG terminal is access to the gas pipeline that Maritimes & Northeast built in the late 1990s that connects gas fields off Sable Island, Nova Scotia, to large markets for the fuel in Massachusetts. A terminal would have to be close enough to economically tie into that pipeline.