Ban on plant struck down

Baltimore County LNG rules exceeded authority, court rules

May 20, 2008|By Laura Barnhardt | Laura Barnhardt,Sun reporter

A federal appeals court has struck down a Baltimore County law seen as giving opponents of a proposed liquefied natural gas terminal on Sparrows Point their best chance of stopping the project.

Eastern Baltimore County community activists and elected officials who have been fighting the LNG terminal since it was proposed more than two years ago by AES Corp. criticized the ruling yesterday and expressed continued opposition to the project.

The 10-page opinion of the three judges for the 4th U.S. Circuit Court of Appeals sides with lawyers for AES who say the county overstepped its authority to create zoning regulations and interfered with the National Gas Act.

The ruling comes just weeks after federal regulators recommended conditional approval for the LNG terminal proposed at the former Bethlehem Steel shipyard and an 88-mile pipeline to be built to southern Pennsylvania. AES is a power supply company based in Arlington, Va.

Baltimore County Executive James T. Smith Jr. and county attorneys were reviewing the opinion to decide whether to appeal.

"This setback will not deter the county executive from continuing to fight this plant," said Donald I. Mohler III, a spokesman for Smith. "He has said and continues to believe this is the wrong plant, at the wrong place, at the wrong time."

Sen. Barbara A. Mikulski also criticized the court finding yesterday in a statement, and Gov. Martin O'Malley pledged to work with federal and local officials to stop the project.

"The LNG facility at Sparrows Point is a threat to our homeland security, a threat to our environment and Chesapeake Bay and a threat to the families of eastern Baltimore County," O'Malley said in the written statement.

The Baltimore County Council passed an amendment to its Coastal Zone Management plan last year that prohibited LNG plants and other facilities, such as oil refineries,in environmentally sensitive coastal areas.

The state Critical Area Commission adopted the change in June, and that same month U.S. District Judge Richard D. Bennett upheld the county law.

Lawyers for AES appealed, saying that the county is attempting to circumvent the federal approval process for energy projects.

Officials from AES provided no immediate reaction to the court ruling yesterday. "We will issue a statement once we have more thoroughly reviewed the broad implications of the 4th Circuit's decision," Kent Morton, the Sparrows Point project manager for AES, wrote in a statement.

Bill Cooper, president of the Center for Liquefied Natural Gas, a Washington-based trade association, said he believes yesterday's ruling sends a message to government entities that they cannot change the rules after a project has started to affect the outcome.

"The overriding effect is that rule of law will take precedence over emotional fear-mongering. These type of projects will stand or fail on their own merits," Cooper said.

Community leaders opposed to the LNG project held a rally over the weekend to generate support at federal regulatory hearings next month and to honor the work of Sharon Beazley, a vocal LNG opponent who died last week.

"We'll continue fighting on," said Carolyn Jones, president of the Greater Dundalk Alliance, which Beazley co-founded.

Beazley was among the Dundalk residents who traveled to Richmond to hear lawyers present their cases to the federal judges in January. Russell Donnelly, who worked with Beazley on the LNG opposition team, also made the trip.

"By their ruling, these judges are saying the natural resources of our environment are second to the wishes of a private energy company," Donnelly said.

The LNG project continues to have support from some labor groups. Rod Easter, president of the Baltimore Building and Construction Trades Council, said in a statement, "Today's ruling - along with the recent preliminary approval of the project by FERC -- makes it apparent that the Sparrows Point LNG terminal is very likely to be built, creating hundreds of new jobs. As we move toward construction, there is an opportunity for all of us - even those with differing views on this project - to come together to ensure that it benefits our community."

Under the company plan, large tankers carrying imported, super-chilled liquefied natural gas would unload at the Sparrows Point facility, where the LNG would be returned to its gaseous state and pumped through an 88-mile pipeline to be built to southern Pennsylvania for distribution.

In April, the Federal Energy Regulatory Commission concluded that the AES project could be "environmentally acceptable" with additional work.

The U.S. Army Corps of Engineers is reviewing the company's request to dredge the Patapsco River for theoverseas LNG tankers.

Public hearings before officials from the Army corps and from FERC are scheduled June 9 in Dundalk, June 11 in Downingtown, Pa., and June 12 in Edgewood.

Chief Judge Karen J. Williams, Judge Dennis W. Shedd and Liam O'Grady, a federal district judge from eastern Virginia sitting on the 4th Circuit, agreed to reverse the decision of the federal district judge in Baltimore. But they did not agree about some legal points, including whether the county LNG ban should have been reviewed by the National Oceanic and Atmospheric Administration.

The county can request all the judges on the 4th Circuit to review the opinion or file an appeal with the Supreme Court, said Carl Tobias, a law professor at the University of Richmond, "but that's always a long shot."

laura.barnhardt@baltsun.com

Sun reporter Brent Jones contributed to this article.

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