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Washington, Oregon File Amicus Briefs on LNG Jurisdictional Fight

The states of Washington and Oregon last month filed friends-of-the-court (amicus) briefs in the U.S. Ninth Circuit Court of Appeal supporting California's contention that FERC does not, as it has asserted, have exclusive jurisdiction in the siting of liquefied natural gas (LNG) facilities. They asked the court to reverse the federal regulatory panel's finding.

In a joint letter to the court, the two Pacific Northwest coastal states stated that collectively and individually they have "a clear interest" in the case, and as such, the Federal Energy Regulatory Commission's declaratory ruling last year on its exclusive LNG authority "raises serious questions about the [two] states' ability to continue to carry out their statutory responsibilities to their citizens through enforcement of state laws, including facility siting laws."

Both Washington and Oregon have energy facility siting agencies, which they point out in their amicus briefs, and they note in the filings from their respective attorneys general that several firms have expressed interest in locating LNG facilities in their respective states.

"One firm has filed notice of intent with the Oregon Energy Facilities Siting Council and another has publicly announced its intent to seek approval to locate in (the state of) Washington," the filing stated.

Washington and Oregon argued that, as California has maintained, the Natural Gas Act does not preempt states' authority to regulate the siting, construction and operation of LNG terminals. Further, the two states contend that for the court to evaluate preemption claims, it must begin with "a presumption against preemption," along with stressing that the federal gas act does not support an inference that Congress intended to preempt state law and that there has not been a showing that "there is a basis for finding conflict preemption."

"As in Oregon, the Washington Energy Facility Site Evaluation Council has worked with the Nuclear Regulatory Commission (NRC) since the 1980s, when five nuclear power plants were proposed and permitted, and has continued to work with the NRC on the operation of the Columbia Generating Station on the Hanford Nuclear Reservation," the amicus filing stated, adding that in the past 10 years the state also has done joint environmental reviews with a half-dozen other federal agencies.

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