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  • Writer's pictureThe San Juan Daily Star

DC appeals court upholds port dredging environmental assessment

A U.S. Court of Appeals-D.C. Circuit panel, in unanimously affirming that the San Juan Bay dredging project complies with U.S. environmental regulations, noted that the environmental assessment considered the project’s facilitation of a potential shift in Puerto Rico’s energy market to increased use of liquefied natural gas.

By The Star Staff

A U.S. Court of Appeals-D.C. Circuit panel has unanimously affirmed that the San Juan Bay dredging project, which would widen and deepen the channels through which ships travel and allow Puerto Rico’s energy market to increase the use of natural gas, complies with U.S. environmental regulations.

The three-judge panel decided in a ruling last week that neither the U.S. Army Corps of Engineers (USACE) nor the National Marine Fisheries Service acted “arbitrarily or capriciously in carrying out their responsibilities to evaluate environmental problems.”

The court noted that the environmental assessment of the project considered the dredging project’s facilitation of a potential shift in Puerto Rico’s energy market to increased use of liquefied natural gas (LNG). In the early stages of project planning, and well before the publication of the draft Environmental Assessment, the Puerto Rico Electric Power Authority (PREPA) informed USACE that it intended to construct an LNG terminal on San Juan Harbor, which would receive and process imported LNG for two existing power plants that would be converted to natural-gas facilities. Due to the size of the tankers used to transport LNG, constructing an LNG terminal and converting the power plants would not be viable unless the harbor was dredged. Based on PREPA’s expressed intentions, USACE recognized in its environmental assessment that “a transition to LNG is a reasonable future assumption.”

Lawyers for the Center for Biological Diversity, representing environmental groups El Puente and CORALations, took the case to the D.C. Circuit court, arguing that USACE failed to properly consider the scope of the dredging project’s environmental impact, how it will affect minority and low-income communities, and the potential damage to coral.

Although they argued that USACE had failed to consider the consequences of the construction of an LNG terminal associated with the project and its environmental impact, the panel of judges did not rule on that allegation because the issue did not initially appear in the administrative complaint.

“In fact, the potential construction of an LNG terminal did not appear to warrant detailed consideration due to the uncertainty that construction would occur: at the time the Corps prepared the environmental assessment, PREPA had not submitted a federal permit application or requested any federal action regarding possible LNG conversion; and PREPA itself faced possible privatization, bankruptcy and the debilitating effects of two hurricanes,” said Circuit Judge Florence Pan, who wrote the opinion.

Emily Jeffers, senior attorney at the Center for Biological Diversity, said in response to the ruling that dredging in San Juan Bay “is already disrupting communities and endangering coral ecosystems, and I am deeply disappointed that the court ruling fails to recognize the threat it poses.”

Jeffers said the “massive LNG infrastructure that dredging will make way for will undermine Puerto Rico’s clean energy future at a crucial time.”

“From start to finish, the department did not give local people enough of a voice in this project, and officials failed to consider the actual risks properly,” Jeffers said.

According to USACE plans, the Port of San Juan dredging project – which will last a year – is intended to facilitate the movement of large vessels such as cruise ships, cargo ships and petroleum tankers that are currently unable to navigate or easily enter the port.

The environmental groups argued in their complaint that the dredging project will “increase air pollution and harm the environment” and impact public health, and that the project “perpetuates and increases Puerto Rico’s dependence on fossil fuels for energy.”

However, USACE “limited the scope of the dredging project to include only the impacts of the specific dredging activities,” even if later, the groups said.

For the organizations, the environmental assessment that USACE issued was initially very limited, and although it was later expanded to include the entire San Juan Bay area, it was only intended to analyze additional dredging activities.

They also argued that the “Corps failed to effectively communicate all expected impacts to local communities” because it did not extend the comment period for the environmental assessment when Hurricanes Irma and Maria hit Puerto Rico in September 2017.

The environmental groups said the National Marine Fisheries Service (NMFS) initially said it could not agree with USACE’s position that the project would not adversely affect bay corals. Still, later, it changed its position and found that the project was unlikely to affect endangered coral species adversely.

The court ruled that the NMFS’s action did not represent a change in public policy.

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