SOUTH COAST — An upcoming measure on the May ballot, if passed, could halt the Jordan Cove and Pacific Connector Gas Pipeline project in its tracks.
The proposed initiative, Measure 6-162, which its petitioners call “The Coos County Right to a Sustainable Energy Future Ordinance” would prohibit the transportation of fossil fuels within the county as well as the development of any non-sustainable energy systems, particularly hydraulic and pneumatic fracturing.
Local activist Mary Geddry, one of the initiative's co-petitioners, said it would establish a countywide Bill of Rights that expands upon the already existing Bill of Rights.
“We’re using direct democracy to protect our rights for a sustainable energy future,” she said in a phone interview on Tuesday.
The list of expanded rights, according to the initiative, include the right to a sustainable future and the right to community self government. The ordinance also lists rights for Coos County residents that would effectively bolster environmental protection and hamstring development of public lands by “non-sustainable energy systems.”
“This will have the effect of prohibiting non-sustainable energy infrastructure like Jordan Cove,” Geddry said. “It will also prohibit the use of eminent domain to acquire private property for other non-sustainable energy infrastructure, for example Pacific Connector Gas Pipeline. Really, what we are trying to do is stop making Coos County a resource colony and find ways to create a sustainable local economy, rather than riding on the coattails of some corporate white knight."
Jordan Cove spokesman Michael Hinrichs said Wednesday Veresen Inc., the Calgary, Alberta-based company behind the project, was against the measure.
“We think that it would have negative consequences toward the resource industry in the county,” he said. “It certainly goes against the spirit and intents of Jordan Cove.”
On Friday, the Federal Energy Regulatory Commission approved Jordan Cove LNG’s pre-filing application, allowing the liquefied natural gas (LNG) export project to move through the federal permitting process.
“We have invested more than a decade in optimizing the engineering design and minimizing our environmental footprint through scientific analysis and community feedback,” said Betsy Spomer, CEO of Jordan Cove LNG, in a prepared statement following the announcement. “We are confident Jordan Cove will be permitted and contribute significant direct and indirect benefits to southern Oregon.”
The project would be the largest single private investment in the history of southern Oregon.
Hinrichs said Veresen would move forward even with the uncertainty surrounding the ballot measure.
He said similar laws have been struck down in other states because they either contradict the state constitution, federal law or “rely on dubious legal precedent, such as listing a watershed as a plaintiff.”
According to Hinrichs, in Mora County, N.M., the courts recently struck down a Community Bill of Rights.
However, the judge in that case found the locality could theoretically regulate elements of the hydrocarbon industry, as long as the regulations did not contradict the state constitution. For example, passing county ordinances on traffic or noise, filing nuisance claims from sound, dust and chemical run off and the potential negative impact on neighboring landowners.
Geddry countered that around 200 rights-based ordinances had been passed across the country over the past decade and more were being considered.
She said the debate over the ordinance comes down to whether communities had the right to defend themselves from corporate harm and was critical of the recently proposed HB2480 for the 2017 State Legislative Session sponsored by Rep. Cliff Bentz (R-Ontario).
If passed, the bill “preempts city, county or other local government from enacting charter provision, ordinance, resolution or other provision regulating expansion of infrastructure for [the] primary purpose of transporting or storing fossil fuels.”
It’s a potential outcome that Geddry said she believes is another step in the wrong direction.
“What happens ultimately if you leave the system the way it is, is that the board of directors of whatever corporation is making decisions for our community rather than the communities making the decisions themselves,” she explained. “And we feel since we have to live with the consequences of those decisions we ought to be able to make our own decisions in a democratic way rather than with this top down level.”
Coos County Commissioner Bob Main said the measure would be difficult to defend in court.
"It just doesn’t appear like it would pass a legal test in many ways," he said in a phone interview on Thursday. "There seems to more than one question in the ordinance — which I am not sure if that's even allowed — it could violate the interstate commerce clause and seems to aim to change both Oregon and the United States constitution."
Main also criticized the definitions in the ordinance, such as "non-sustainable energy systems" that he said are too broad.
"'Non-sustainable energy systems,'" he said. "What does that mean? Like it’s wide open; I mean the sun is going to extinguish someday."
Issues with wording and their legal implications have plagued similar initiatives in the past.
Just last year, then Secretary of State Jeanne Atkins ruled a petition Geddry had submitted did not comply with the procedural constitutional requirements.
In a letter detailing the ruling, the office said the petition — titled "Right of Local Community Self-Government" — would eliminate already existing rights in the Oregon Constitution.
"The proposed measure introduces two kinds of local laws," the office's Chief Consul, Steven A. Wolf wrote. "Those 'establishing the fundamental rights of natural persons' and those that 'establish define, alter or eliminate competing rights, powers, privileges, immunities, or duties of corporations and other business entities.' We conclude that the multiple changes contained in this proposed measure cannot be presented by way of a single proposed initiative measure."
Geddry understands this and says the new measure aims to only add rights on top of existing ones.
"You can always add rights but you can’t take rights away," she said. "So you can’t add a right that infringes on existing rights."
Regardless, Main was resolute in how he would react were the measure to pass.
"The county doesn’t have a lot of extra cash flowing around," he said. "So let's say this thing passed. It may put the county in the position to defend it, which for me, and I can’t speak for the other two commissioners, but I would go 'O.K. the plaintiff wins.' I mean I can’t defend this thing and I don’t want to spend a lot of money on it."