PORT FILES NOTICE OF REMOVAL TO FEDERAL COURT ON LNGS

By Juan Montoya

The Brownsville Navigation District, through its attorneys, has filed a notice of removal that it will refer a petition for  temporary and permanent injunction filed in the 445th District Court  by the City of Port Isabel, Mayor J.J. Zamora and city commissioner Martin Cantu to the United States District Court for the Southern District of Texas, Brownsville Division.

In the petition for the  injunction the plaintiffs claimed that if the port is allowed to construct three LNG terminals and processing plants "PI and its inhabitants shall sustain injury and damages to their respective property within the city limits of PI and shall sustain injury and damages to their air, soil, food, and water quality which shall affect the health, safety and welfare of PI’s inhabitants.

Without the injunction requested herein the citizens and inhabitants of PI shall sustain a probable, imminent, and irreparable injury."

The 13-page motion contains seven lengthy attachments from applications to the Federal Energy Regulatory Commission from the various liquid natural gas businesses including but not limited to Texas LNG Brownsville LLC, Annova LNG Common Infrastructure, LLC, Rio Grande LNG LLC, and NextDecade Corporation and studies by environmental experts.

In the motion, the plaintiffs say that "The premises BND leased to the various liquid natural gas businesses border the city limits of the City of Port Isabel Texas or are in very close proximity to the city limits of the City of Port Isabel Texas and within the City of Port Isabel’s extra-territorial jurisdiction."

In the notice, the port states that they moved for removal after "plaintiffs further alleged that defendant's conduct in entering into contractual  agreements with the businesses proposing to site, construct, and operate LNG terminals on the port's property has given rise to claims for negligence, public nuisance, strict liability, a taking by defendant, and for injunctive relief. Plaintiffs seek preliminary and permanent injunctive relief to prevent the siting, construction, and operation of the LNG terminals on defendant's property."

In the notice, BND asserts that any civil action brought in state court, of which the District Courts of the United States have original jurisdiction, may be removed by the defendant to the District Court of the United States for the district and division embracing the place where such action is pending.

Under the federal Natural Gas Act (“NGA"), they claim, the Federal Energy Regulatory Commission (“FERC”) has "the exclusive authority to approve or deny an application for the siting, construction, expansion, or operation of an LNG terminal.

Moreover, under the NGA, they claim, “The District Courts of the United States and the United States courts of any Territory or other place subject to the jurisdiction of the United States shall have exclusive jurisdiction of violations of this chapter or the rules, regulations, and orders thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by, or to enjoin any violation of, this chapter or any rule, regulation, or order there under."

The NGA further provides that upon the filing of an application to site, construct, expand, or operate an LNG terminal, FERC "shall: (A) set the matter for hearing; (B) give reasonable notice of the hearing to all interested persons, including the State commission of the State in which the LNG terminal is located and, if not the same, the Governor-appointed State agency described in section 7176-1 of this title; (C) decide the matter in accordance with this subsection; and (D) issue or deny the appropriate order accordingly.”

The port asserts that it has complied with the NGA provisions of the law and that following notice to interested parties, including the City of Port Isabel and its residents, and after years of review of the proposed projects, including their impact on the local environment and the public interest, on November 21, 2019 FERC issued orders granting authorization to site, construct, and operate LNG terminals on Defendant's property to Rio Grande LNG, LLC; Annova LNG Common Infrastructure, LLC, Annova LNG Brownsville A, LLC, Annova LNG Brownsville B, LLC, and Annova LNG Brownsville C, LLC; and Texas LNG Brownsville LLC.

The notice states that although the commission encourages cooperation between the permit holder and local authorities, this does not mean that state and local agencies, through application of state or local laws, may prohibit or unreasonably delay the construction or operation of facilities approved by this Commission.

The port's notice of removal states that the plaintiffs "seek to enjoin the siting, construction, and operation of LNG terminals on Defendant's property.

"In effect, having failed to convince FERC that the LNG terminals are not in the public interest or that the LNG terminals are environmentally unacceptable, and are nothing more than an impermissible collateral attack on FERC's federally mandated exclusive jurisdiction over the siting, construction, and operation of the proposed LNG terminals."

The notice of removal was filed in federal court last Friday.