Appeals Board Finds Bias, Orders County To Re-Vote On LNG Pipeline
The Oregon Land Use Board of Appeals says Clatsop County will have to vote again on a controversial liquefied natural gas pipeline after determining one of its commissioners was biased against the project.
The board released its decision today in response to a challenge from Oregon LNG project developer Leucadia National Corp. The Oregon LNG project would receive natural gas by pipeline, cool it to a liquid and export it overseas in ships. It would also be capable of receiving LNG from ships and distributing natural gas by pipeline.
The company appealed last year's Clatsop County Commission vote against a 41-mile section of pipeline connected to the project. Among other problems flagged in its appeal, the company argued that three of the commissioners were biased against the project and shouldn't have participated in the vote.
Certain land-use decisions require "impartial" decision-makers under Oregon law. Decision-makers who cannot make an impartial decision are supposed to recuse themselves from voting.
LUBA found only one commissioner – Peter Huhtala – was biased as defined by Oregon land use law.
Huhtala has a long history of opposition to liquefied natural gas projects. He made statements against LNG projects, including the Oregon LNG project, when he ran for the local port commission and when he ran for county commission. He also participated in an appeal of an earlier land-use decision in an effort to stop the Oregon LNG project. He also spent some time working for the LNG opponent group Columbia Riverkeeper.
But his biggest fault, LUBA found, was the action he took right after he was elected as county commissioner.
In January 2011, Huhtala participated in "a hasty vote" to reverse the previous county commission's approval of the Oregon LNG pipeline, the LUBA decision states.
That decision, LUBA found, was not necessary, "and we believe it seriously undermines any ability to conclude consistently with this record that Huhtala was motivated solely by an interest in achieving a legally correct decision."
The appeals board found Huhtala's vote in that case was driven more by his past opposition to LNG and less by any legal concern about the pipeline.
"Huhtala's action to take the additional step of pulling that decision back for reconsideration, when viewed with all the other evidence that he is not capable of being impartial in this matter, is collectively clear and unmistakable evidence that Huhtala acted in this matter with actual bias and should instead have refrained from voting to withdraw the decision and voting to deny it," the LUBA decision states.
Later, in October 2013, Huhtala and the rest of the county commission voted against the pipeline – effectively reversing the earlier board's vote of approval.
The appeals board concluded there is nothing that can reverse or undo the 2011 vote. However, it found the 2013 vote on the pipeline needs to be "rendered by unbiased decision makers."
The board remanded the county's 2013 decision, sending it back for another vote without Huhtala's participation.
LUBA Chair Melissa Ryan provided a dissenting opinion, saying she disagrees with the appeals board's conclusion that Huhtala was biased.
The appeals board didn't consider nine of the arguments Oregon LNG made in its appeal. The Clatsop County Commission's 2013 vote against the Oregon pipeline was unanimous, so it's possible the board could cast a majority vote against the pipeline even without Huhala.
Such an outcome could set up yet another LUBA appeal.