Congressional Probe into EPA Flip-Flop on CP

BY HANS LAETZ

Congress late Tuesday opened an investigation into why BHP Billiton was able to win an important regulatory reversal for its Cabrillo Port plan from the Environmental Protection Agency. This congressional probe is one of the first announced by House Democrats since they took control of Congress this year, and could throw a monkeywrench into plans to station a permanent, floating liquefied natural gas terminal off the Malibu coast.

Henry Waxman, the new chairman of the House Committee of Oversight and Government Reform, asked EPA administrator Stephen Johnson to explain why EPA regional officials reversed themselves after saying three times that Cabrillo Port would have to comply with the strictest level of smog controls, including buying “smog offsets” that may be impossible to obtain at any price.

Waxman is the representative for coastal Malibu and West Los Angeles, two areas most likely to bear the impact of the 484 tons of smog-producing chemicals that the Australian company wants to send skyward per year. Cabrillo Port, the proposed floating LNG terminal, would sit 13.8 miles off the Malibu coast.

“It has come to my attention that EPA has reversed its interpretation of the governing laws and regulations in examining the air permit application for this project,” Waxman wrote in a letter to the EPA Tuesday. That reversal came after the White House Energy Office interceded on behalf of BHPB and the Australian government, which strongly backs the $50 billion, 40-year export project.

A Freedom of Information Act request from the Santa Barbara-based Environmental Defense Center uncovered a chain of communications from the White House to EPA regional officials in San Francisco, prodding them to grant BHPB an exemption from the smog rules that all other industries must follow. The EDC is a law group funded by the Cal.ifornia Coastal Protection Network, which is coordinating coastal residents fighting several LNG terminals planned for Long Beach, Malibu and Oxnard.

In June 2005, a Malibu reporter uncovered the sudden EPA reversal, which the agency attributed to a decision to “use its discretion” in interpreting Ventura County smog rules. The subsequent uproar caused the Ventura smog board to vote 9-0 last October to tell EPA it had made a mistake.

Waxman has demanded that EPA turn over to congressional investigators all documents behind the legal rationale for the reversal, including legal memos that were not covered by the EDC’s request for public documents. Waxman’s letter set a Jan. 23 deadline for the EPA’s legal analysis on the BHPB exemption to be handed over to congressional investigators, and a Feb. 13 deadline for the agency to hand over emails and other communications.

A call to a BHPB official at his home was not returned late Tuesday.

Along the Pacific coast, the news was toasted by LNG opponents. “If I had a bottle of Dom Perignon, I’d pop it right now,” said Malibu Council Member Andy Stern, the most vocal LNG critic on the city council. “Those of us involved in watching this project have been very concerned about several aspects, and this is one of them.”

Susan Jordan, the CCPN executive director, said her activists “have long maintained that the EPA reversal on the BHP Billiton proposal was politically motivated, and ultimately illegal. We look forward to hearing what the committee learns during the next several weeks.”

The EPA reversal is not final, and its ultimate ruling will come this spring.