Two State Commission Staffs Split on
Cabrillo Port
• Coastal Commission Report Is a
Resounding No—But State Lands Commission Endorses It
The staffs of two separate state
commissions issued contradictory recommendations
on the application by BHP Billiton to build a liquefied natural
gas terminal near Malibu. And although the reports are
advisory, coastal advocate lawyers said that taken as a whole
they appear to be bad news for the offshore terminal.
The California Coastal Commission
staff recommended that Cabrillo Port be rejected by that
agency, because it would increase smog beyond allowable limits,
intrude on a highly scenic area in an unacceptable way, and
kill too many fish and whales.
But the staff report from the State Lands
Commission, also released Friday, recommends that the agency
approve the license for the company to pay the state $155,000
rent per year to connect its offshore terminal across a
state-owned beach near Oxnard and into the state’s energy
grid.
The State Lands Commission staff also
recommends that BHP Billiton obtain a $1.3 billion liability
insurance policy in case the plant, 13.8 miles off the Malibu
coast, would cause that much damage.
“Our staff has evaluated both the
Environmental Impact Report and the project itself,” said
Lands Commission executive officer Paul Thayer.
“And we have concluded that the project can be
built under the public trust doctrine, to benefit the people of
California.”
Thayer said the endorsement comes in
weighing the public interest in building the energy terminal
over the 20 negative environmental issues that cannot be
mitigated if Cabrillo Port is built.
Thayer said the Lands Commission is
not charged with enforcing anti-smog or coastal protection
laws, and therefore did not consider the same set of facts and
laws that the Coastal Commission and smog authorities are
grappling with.
Although the Lands Commission
staff echoed its recommendations from the voluminous
Impact Report, which it wrote over the last three
years, the Coastal Commission’s staff ripped into the
Cabrillo Port concept.
CCC staff recommends the coastal panel
reject the LNG ships as incompatible with the
state’s coastal protection plan because they would
cause smog and mar the “highly scenic qualities of this
coastal area (that) are among the most valued in the state and
constitute a major attraction for visitors to the beaches and
surrounding areas.”
In its 186-page report, Coastal staff
accuse BHP Billiton of proposing a project that could, if the
company desired, avoid illegally polluting the air. “The
Commission believes that the public welfare benefits of
the Cabrillo Port project are outweighed by the failure of the
project to meet Clean Air Act requirements,” the
staff said.
The report said the
Commission’s objection to Cabrillo Port would
not adversely affect the public welfare because a better,
cleaner plant could be built elsewhere. “The Commission
further believes that this, or another LNG terminal should be
able to both supply California with natural gas and meet
relevant Clean Air Act requirements.”
The Coastal Commission staff said BHP
Billiton would not use the required best-available anti-smog
technology, would not properly offset hundreds of tons of new
air pollution, and would emit so much greenhouse gas that the
one project alone would increase sea levels on the
California coast.
The CCC report said the total impact of
compressing natural gas in Australia, shipping LNG cargoes
across the Pacific, and then burning gas to heat up the fluid
at Cabrillo Port would add 26.4 million tons per year of
greenhouse gas to the globe’s atmosphere.
Coastal staff said Cabrillo Port’s
impact on the surrounding environment would be incompatible
with state coastal law in 14 major areas. The CCC report
said BHP Billiton is mitigating some of the 14 negative
impacts, but cannot possibly comply with state coastal laws
related to air quality, oil spill prevention and response,
earthquake and tsunami hazards, and the visual impact on the
spectacular coastal views between Malibu and Oxnard.
Among other findings, the Coastal
Commission staff report said Cabrillo Port would:
• emit air pollutants in excess of
federal and local thresholds established to protect public
health and welfare;
• produce greenhouse gases at levels
that would result in adverse effects to coastal resources in
the form of sea level rise, ocean warming, increased erosion,
habitat displacement, and others;
• create underwater noise at levels
that would affect marine mammals;
• put large marine mammals at risk due
to entanglement and strikes from vessels and equipment;
• alter three billion gallons of
seawater per year, which would kill fish eggs, larvae, and
other organisms;
• increase lighting at levels that can
reasonably be expected to affect seabirds;
• place pipelines and permanent
anchors on the seafloor that would disturb ocean-floor habitat;
• discharge liquid wastes that could
adversely affect water quality;
• impose health and safety risks
associated with storing and transporting natural gas;
• harm sensitive species with
construction activities in or near their habitat;
• close commercial fishing grounds,
entangle fishing gear and interfere with commercial fishing
activities in port;
• accidentally spill or release
natural gas, fuel, other petroleum products, and other
hazardous substances;
• present safety issues because it
would be located in areas subject to seismic hazards, including
ground shaking, fault rupture, liquefaction, failure of subsea
slopes, and tsunamis; and
• negatively impact views because
of its location and nighttime lighting along several miles of
the California coast.
The State Lands Commission report also
addresses the same failings, but said they are not so
significant as to preclude leasing the land to BHP Billiton for
at least 40 years.
“But remember, we have no authority
under the Coastal Act to enforce the coastal protection laws,
or under the Clean Air Act to enforce the smog laws,”
said Thayer. “Our recommendation should in no way be
taken to be at odds with the Coastal Commission staff
– each of us is looking at this project through a
different set of requirements.”
Thayer said the state is prohibited by a
U.S. Supreme Court decision from charging BHP
Billiton a share of what the company will earn from the
project – estimated in some Australian newspapers to be
$50 billion over the life of the project.
“We can only charge a fair market
value for the land itself, and our team of assayers and
consultants believe that to be $155,000 for the first
year,” he said.
Coastal advocates were ecstatic about the
Coastal Commission findings, but irate about the State Lands
Commission. Susan Jordan, executive director of the
California Coastal Protection Network,
called the Lands Commission report a “deeply
flawed and incomplete report that distorts the true impacts of
the proposed BHP Billiton LNG terminal complex.”
Jordan said the lands commission staff
“ignore many of the serious health and safety
concerns about this massive terminal and storage facility that
would be constructed just off the Southern California
coast.”
She said it was “shocking that the
[SLC] staff would omit the critical findings of the
commission’s own Final Environmental Impact
Report, released less than a month ago.” Repeated
requests for comment or response to the issues raised in the
reports went unanswered by BHP Billiton offices in Ventura,
Oxnard and Houston. The company, however, sent out a press
release Monday saying that the Ventura Chamber of Commerce
again endorsed the project’s approval.
Under a bizarre and confusing set of
federal and state laws, the first of several hearings this
month took place Wednesday in Oxnard, when federal officials
took evidence about the proposed federal license for the
plant. The federal decision will be released within 90 days in
Washington.
(Although that hearing occurred while
this newspaper was being printed, an updated account of it will
be posted Thursday at www.malibusurfsidenews.com)
Next Monday, the State Lands Commission
will take testimony and vote on the project’s state
license application, also in Oxnard. If this three-member
panel votes “no,” the project is dead, and its
rejection is final.
But if State Lands approves it, then
Cabrillo Port goes before the Coastal Commission three days
later, on April 12 in Santa Barbara. Coastal will review
the staff report issued last week, take testimony and then
decide whether the BHP Billiton application complies with the
California Coastal Management Plan.
If Coastal follows its staff
recommendation, and rejects the project, that means the federal
Maritime Administration cannot issue a permit
for the $800 million project. But there’s a catch: under
federal law, the U.S. Commerce Secretary can overrule the
California Coastal Commission by finding it a matter of
national interest.
In addition, Gov. Arnold
Schwarzenegger can veto the project, but he has no power
to override a negative decision from the SLC or CCC.
On top of everything else, the
Environmental Protection Agency still has to decide on a
controversial exemption that BHP Billiton seeks from the
U.S. Clean Air Act. Company officials, EPA staff and the White
House are the subjects of Congressional probes into possible
subversion of the nation’s clean air laws due to pressure
from the White House to approve Cabrillo Port.
