Clatsop County’s decision to deny Oregon LNG a land use application for its proposed pipeline was flawed because of bias, according to the company’s attorney.

On behalf of the county, attorneys say commissioners were able to set aside their past feelings about the liquefied natural gas project and look at the facts that were presented.

The Land Use Board of Appeals heard oral arguments Thursday from both sides. If the board agrees with Oregon LNG and its affiliate Oregon Pipeline Co., the denial will be remanded back to the county.

Columbia Riverkeeper, an advocacy group opposed to the project, believes the case could be a turning point for whether the project moves forward. LUBA is expected to reach a decision by June 9.

“This destructive LNG pipeline violates Oregon’s land use laws designed to protect farms, forests, rivers and salmon,” said Brett VandenHeuvel, the group’s executive director.

The project was recently granted an export license by the National Energy Board in Canada, allowing it to ship the country’s natural gas overseas from the proposed Warrenton terminal. But permits from state and federal agencies are still pending.

Mike Connors, attorney for Oregon LNG, said Thursday the county leaders’ opposition to the project prior to taking office affected the way they reviewed and ultimately decided on the land use application.

Forty-one miles of pipeline would be laid through the county and go through public and private forests, as well as agricultural land, before connecting with the proposed facility. Clatsop County commissioners only had jurisdiction to approve or deny the pipeline proposal. They voted unanimously in October to deny it after a lengthy public hearing. After evaluating safety hazards and environmental obligations, as well as zoning requirements, the county’s planning department recommended the board deny the application.

That decision came two years after a legal dispute over whether the board had the authority to withdraw a preliminary approval of the application by the previous board just months earlier. The makeup of the board was changed when Chairman Scott Lee, Commissioner Peter Huhtala and former commissioner Debra Birkby were elected in May 2010.

Disclosure questioned

Connors focused much of his argument on the commissioners’ contacts with opponents and statements they made prior to taking office in January 2011. As a quasi-judicial body, the board was required to disclose whether they received information pertaining to the project that would be considered “outside the record.”

Connors said the commissioners should have disclosed everything going back to the original filing of the application in October 2009. When asked to disclose anything in a 2013 hearing, Connors said commissioners didn’t do an adequate job when simply answering they didn’t have anything to disclose.

“If they don’t make it adequately, then that’s ground for remand,” said Connors. “We don’t think they’ve adequately done that in this case.”

Jeff Bennett, the county’s legal counsel, said the company can’t show whether it was inadequate. “He’s asking for a rule that says ‘no’ is not enough,” Bennett said.

Connors said the commissioners’ actions and statements made prior to taking office and immediately afterward are evidence of bias against the overall proposed LNG project.

Bias was particularly evident with regard to Huhtala, Connors said, because of his past work opposing the LNG terminal and running political campaigns as an anti-LNG candidate.

“Those actions and opposition to the project at every stage that was possible before he took office show a clear philosophical opposition to our project and an animosity to any kind of LNG facility in the county,” Connors said.

He also mentioned Huhtala was formerly a board of directors member for Columbia Riverkeeper and part of an advisory board for the group.

Huhtala disclosed the past affiliation in the October hearing and said he was on the board of directors 10 years ago and resigned from the advisory board after being elected in 2010.

Bennett said when the new commissioners took office it was made clear to them they had a responsibility to look at the facts of the application and judge fairly. He said the considerable review of the application shows how serious the board took the process.

“If they really wanted to just deny this application, would they have gone through a five-hour reconsideration hearing?” Bennett said.

Bennett also said changing the preliminary decision made by the previous board wasn’t evidence of bias and didn’t show prejudgment.

“That doesn’t reflect bias,” he said. “That reflects a different outcome. Just because Oregon Pipeline got an approval in one case and a denial in another case doesn’t mean that denial resulted from bias.”

Lauren Goldberg, an attorney with Columbia Riverkeeper, an intervenor in the case, pointed out to the three-person LUBA panel that four county staff reports recommended denying the application based on county standards.

Oregon LNG is also contesting the county’s conclusion about horizontal directional drilling, a method used for going underneath waterways for installation of the pipeline. The application denial was based in part on the method and lack of contingency planning if the drill failed, affecting lower Columbia River salmon habitat.

Connors argued the conclusion couldn’t have been reached based on the facts that were presented to the board.

Goldberg said the board had multiple ways to reach that conclusion, mainly submitted comments made by the Oregon Department of Fish and Wildlife for a different project about the impacts the drilling material would have on fish.

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