LNG case may go to high court

County planning appeal of approval for gas facility

August 02, 2008|By Laura Barnhardt | Laura Barnhardt,Sun reporter

Baltimore County will take its opposition to the proposed liquefied natural gas terminal at Sparrows Point to the U.S. Supreme Court, County Executive James T. Smith Jr. said yesterday.

"It's for the country and the sake of the county that we'll be pursuing this," Smith said in an interview.

The appeal will challenge the May decision of a federal appellate court that said the county overstepped its authority to create zoning regulations and interfered with the National Gas Act.

The appeal has not been filed, Smith said.

Federal regulators have recommended conditional approval of the LNG terminal that AES Corp. wants to build at the former Bethlehem Steel shipyard and an 88-mile pipeline to be built to southern Pennsylvania. A final report is scheduled to be issued the middle of this month. AES is a power supply company based in Arlington, Va.

A spokesman for the company declined to comment, saying it does not respond to "litigation intentions, pending court procedures or active legal matters."

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 law had been seen as giving opponents of the Sparrows Point project their best chance of stopping it.

The state Critical Area Commission adopted the change in June 2007, and that month U.S. District Judge Richard D. Bennett upheld the county law.

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

The opinion in favor of AES by a three-judge panel for the 4th U.S. Circuit Court of Appeals in Richmond was one in a series of decisions that have favored the LNG project in recent months.

In July, the U.S. Department of Housing and Urban Development officials calculated that the plant would be far enough away from HUD projects to meet standards.

In June, the federal secretary of commerce decided to override the state's objections to the project, which had been based on a finding that the LNG project would conflict with the state's coastal zone management plan.

The LNG project continues to have support from labor groups. Company officials say it will generate about 50 permanent jobs and 375 temporary construction positions.

But elected officials and community leaders have long been critical of the project, saying it will damage the environment. They also worry about accidents or terrorists attacks at the facility, saying the terminal and the ships carrying the liquefied natural gas would be too close to homes in eastern Baltimore County. The historically black neighborhood of Turners Station is less than two miles away.

Critics of the project are also worried about importing natural gas.

"I'm disappointed that our federal energy policy is to be reliant on foreign sources of fuel," Smith said. "That's what this LNG project would do."

Appealing a case to the Supreme Court can be expensive, and "you don't do it lightly," the county executive, a former Circuit Court judge, said. However, the county will use its staff attorneys to argue the case and file the paperwork, Smith said.

The Supreme Court challenge is considered a long shot by legal experts, because the nation's highest court hears few of the cases submitted to it. But a decision by the justices this year stopped a proposed LNG project on the Delaware River, though the case was more narrowly about state water rights.

Community leaders said yesterday that they were pleased the county plans to continue fighting the project.

"The question is: Should a private company's interest take priority over the protection of public health, welfare, safety and the environment?" said Russell Donnelly, an environmental activist from eastern Baltimore County.

A vote on the project by the five-member Federal Energy Regulatory Commission is planned for late November.

laura.barnhardt@baltsun.com

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