Governor’s Office Signals that Cabrillo Port License Is Still His to Determine

• Action to Approve, Modify or Deny Due by May 21

BY ANNE SOBLE

The ink is barely dry on the determination of one state commission concerning aspects of BHP Billiton’s Cabrillo Port liquefied natural gas facility and a second panel is expected to act this week, but Governor Arnold Schwarzenegger is indicating that he will have the last word.

A statement to the Malibu Surfside News late Tuesday by Louis Mauro, Schwarzenegger’s Chief Deputy Legal Affairs Secretary, attempts to clarify his role in the LNG facility approval process but compounds growing uncertainty.

The statement skirts the issue of whether Monday’s California State Lands Commission action “killed” the controversial offshore floating storage and regasification unit by indicating that decisions of the CLSC and the California Coastal Commission can be challenged in court and overturned, but the governor’s authority on this is separate and constant.

Mauro’s analysis places emphasis on the licensing process itself, indicating, “The federal Deepwater Port Act (33 U.S.C. ß 1501 et seq.) establishes the requirements for the federal government to issue a license to operate a deepwater port in federal waters. The proposal by BHP Billiton LNG International Inc. for an offshore Liquefied Natural Gas (LNG) facility requires a license under the federal Act.”

Mauro continues, “The federal Act provides that the federal government may not issue a license without approval from the Governor of an adjacent coastal state. (33 U.S.C. ß 1503(c)(8).) In this instance, the adjacent coastal state is California. Pursuant to the federal Act, Governor Schwarzenegger has 45 days from the last federal hearing on the matter to communicate his approval, his approval with conditions, or his disapproval of the project. If the Governor does not communicate his decision within 45 days, approval is presumed under the Act. (33 U.S.C. ß 1508(b)(1).)”

Mauro notes, “The last federal hearing on the matter occurred on April 4, 2007. Thus, the Governor’s 45-day review period has commenced.”

In light of this 45-day clock, the Schwarzenegger legal adviser says that “the Governor’s Office is conducting a careful and thorough review of the matter and the Governor has not made any decision on this project. Governor Schwarzenegger’s decision is due by May 21, 2007.”

The one-page analysis breaks down the different state reviews of the licensing process in this way: “The State Lands Commission and the California Coastal Commission are responsible for reviewing different and distinct aspects of the proposed project pursuant to different laws. The Governor reviews whether a federal license should issue in federal waters, but the State Lands Commission reviews whether a lease of state lands should be approved for a proposed pipeline over state lands (within three miles offshore). And the California Coastal Commission reviews whether the project is consistent with California coastal laws.”

Acknowledging that “the State Lands Commission voted to disapprove a lease of state lands for the pipeline, and it did not certify the Environmental Impact Report (EIR) for the project [and] the California Coastal Commission will hold a hearing on the project [Thursday, April 12].” Mauro’s analysis does not appear to regard either action as terminating the Cabrillo Port project.

Reiterating the point about finality, the Schwarzenegger legal advisor concludes, “Because the decisions by the State Lands Commission and the California Coastal Commission may be subject to legal challenge and review, and may not be final, the Governor will continue his review of the application for a federal license. If the Governor fails to communicate a decision within 45 days, he will be deemed to have approved the project. His continuing review will ensure that he can take appropriate steps to protect the environment and the people of California.”

Mauro’s statement and an earlier press release attributed to the governor are described by Susan Jordan, the director of California Coastal Protection Network, the group spearheading opposition to Cabrillo Port, as “troubling [because it means the governor is] prepared to ignore the State Lands Commission decision and proceed with his own review of the project.”