Lawmakers File Brief Opposing LNG Preemption Language

LAWMAKERS FILE BRIEF OPPOSING LNG PREEMPTION LANGUAGE

A coalition of 18 Members of Congress from coastal areas today filed a legal brief stating that a provision accompanying the recently passed omnibus appropriations bill should not be interpreted as giving the Federal Energy Regulatory Commission (FERC) sole power to approve the location of Liquefied Natural Gas (LNG) facilities. FERC has made that claim in a case before the Ninth Circuit Court of Appeals in California involving a proposed LNG plant in Long Beach.

The Members of Congress, all of whom have concerns about potentially inappropriate LNG siting, signed a friend of the court brief, prepared by attorneys working with Rep. Barney Frank (D-MA), making it clear that the provision, which was inserted into the bill's explanatory report with no advance notice or opportunity for review, is not binding because it is not part of the actual bill. The brief argues that the provision should have no bearing on the California LNG case, and that existing laws governing natural gas facilities should be interpreted to allow states to share with FERC the authority over LNG plant siting decisions, as well as giving preference to siting LNG plants in remote areas.

The Members of Congress who signed the brief are 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. Lois Capps (D-CA), Rep. Sam Farr (D-CA), Rep. Hilda Solis (D-CA), Rep. Anna Eshoo (D-CA), Rep. Timothy Bishop (D-NY), Rep. Steve Israel (D-NY) and Rep. Rosa DeLauro (D-CT).

"We must ensure that our communities are protected, particularly in a time of terrorist threats and other dangers," Sen. Kennedy said. "The best way to address public safety concerns is for federal officials to work jointly with state and local public safety officials on the needs of our communities. We must ensure that impacted communities have a voice in the siting of these facilities."

"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," Rep. Frank said. "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."

"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," Rep. Markey said. "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."

"The LNG language was tacked on to a huge bill, without any hearing, debate or vote," Rep. McGovern said. "That language should not be construed as congressional intent. Many of us in Congress continue to have serious concerns about the LNG siting process, and we will continue to fight to ensure that local officials and residents have a say in where these facilities are located. I want to thank my colleague Barney Frank for taking the lead on this amicus brief."

"After September 11th, we simply cannot afford to ignore the risks from attack scenarios involving LNG tankers or facilities that previously might have seemed unrealistic," said Rep. Lynch. "To that end, we must be far more cautious and deliberate before constructing any new LNG terminals in the United States. In Everett, Massachusetts, we have an onshore LNG facility that poses a potential risk to thousands of families because of its proximity to the City of Boston. In the future, I believe that our energy and security needs would be best served by building offshore terminals to keep tankers and infrastructure farther away from population centers."