Army Corps must face suit on Columbia River refinery
Monique Merrill
PORTLAND, Ore. (CN) — A federal judge said Thursday that the U.S. Army Corps of Engineers can't duck claims it unlawfully paved the way for a clean fuel manufacturer's construction of a massive renewable diesel fuel refinery along the Columbia River in Oregon.
The challenge to the Army Corps greenlighting the company's use of a levee road can proceed, U.S. District Judge Adrienne Nelson said in her 23-page opinion.
“Legal consequences flow from the Corps' Section 408 determination,” the Joe Biden appointee wrote .
The dispute centers on a letter the Army Corps sent to NXTClean Fuels, also known as NEXT Renewable Fuels, in which it indicated the company wouldn’t need a full Section 408 review and permission — a process typically required when outside parties intend to alter Army Corps civil works projects.
NEXT Renewable Fuels proposed to build a renewable diesel fuel refinery near Clatskanie, Oregon — a small town around 60 miles north of Portland on the Columbia River.
To construct the facility, the company would need to bring in heavy equipment and building materials to Port Westward Industrial Park via a barge, then transport those materials across the Kallunki Road and Bradbury Slough levee, which is a Corps-constructed civil works project.
Columbia Riverkeepers and 1000 Friends of Oregon oppose the refinery construction at large, citing increased air pollution, more barge traffic, loss of wetlands, a heightened risk of catastrophic fuel spills and potential flooding and water pollution as the primary reasons.
The Army Corps argues that the groups didn’t have standing to bring the challenge, but the court disagreed.
“Plaintiffs allege a credible threat that the levee and refinery harms will occur,” Nelson wrote.
The levee harms, according to the plaintiffs, are the potential for heavy haul trucks to damage the levee, increasing flood risk and threatening catastrophic losses to the farmland it protects.
In their initial 2024 complaint, the groups argued that the letter the Corps sent to the company qualified as a final agency action subject to judicial review under the Administrative Procedure Act.
The conservation groups argued that the letter “fails to grapple with the threat that driving trucks loaded with heavy construction equipment and refinery components over the levee will 'alter' or even 'injure' the levee within the meaning of [Section] 408."
The Army Corps argued that the accused harms aren’t imminent because it hasn’t issued final approval for the proposed refinery, and it is unknown when the company will obtain all the approvals. But the Army Corps didn’t dispute that it denies less than 1% of requests for regulatory permits.
The conservation groups “thus show that the Corps will almost certainly grant NEXT” the regulatory permit that will allow construction, Nelson wrote.
Even though the letter doesn’t explicitly allow the company to use the road or begin construction, Nelson found that, “as a practical matter, the letter provides that NEXT can use the road as a haul road without going through Section 408 review.”
“It is true that plaintiffs' alleged injury is partly dependent on NEXT's actions, in the sense that the levee and refinery harms would not occur without NEXT's use of the road and subsequent construction and operation of the proposed refinery,” Nelson wrote. “But the opposite is also true: had the Corps not made its Section 408 determination, the prospect of the asserted levee and refinery harms would not materialize.”
And the Army Corps argument that the company could still use the road if the letter was vacated was not well taken by the court, as Nelson pointed out that using the levee without permission is a misdemeanor.
“It is plausible that NEXT would rely on the Corps' letter in its use of the road and that absent the Corps' letter, NEXT would not act in a way to expose itself to potential criminal liability,” Nelson wrote.
By making the company’s proposal go through Section 408 review, the levee harms could be prevented, Nelson found. Either the Army Corps would deny the company’s request, or it would approve it only after determining that the proposed use of the levee wouldn’t negatively impact the levee.
Nelson also determined that the letter qualified as a final agency action, which makes it subject to judicial review under the Administrative Procedure Act.
“As a practical matter, by determining that Section 408 does not apply to the proposed refinery, the Corps has stated that NEXT can use the road as a haul road without needing the Corps' permission pursuant to Section 408,” Nelson wrote. “After making such determination, it is reasonable to assume that the Corps would not then request criminal prosecution of NEXT for using the road as a haul road.”
Neither the conservation groups nor the Army Corps responded to requests for comment by press time.
NEXT seeks to build its facility at the Port Westward Industrial Park, and plans to produce 50,000 gallons daily of renewable diesel and sustainable aviation fuel. The company, which is not a party in the litigation, intends to use fish grease, used cooking oil and animal tallow to create its renewable diesel.