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The Gristle

Lost initiative

LOST INITIATIVE: Nothing organizes and focuses political energy and public opinion quite like an election; and so it is bitterly ironic that after hundreds of hours and thousands of signatures to place a referendum on arguably the region’s most significant political and public policy question on the Bellingham ballot in November, no such referendum on coal will appear. Bellingham City Council this week declined to take action on a resolution to query public support for the Gateway Pacific Terminal at Cherry Point after city attorneys were successful in court last week, getting a citizen’s initiative struck from the November ballot. The deadline to place such a question on the ballot has now passed.

Whatcom County Superior Court Judge Charles Snyder last week agreed with city attorneys and found Initiative 2012-02, the Coal-Free Bellingham Community Bill of Rights, which would have gone on the ballot as Proposition 2, sufficiently troubling that he struck it from the ballot entirely, declining even to allow it on the ballot as an advisory measure.

Citizens have the right under the city charter to propose laws that are lawful and are within the city’s authority to enact, Snyder found, but severing the lawful from the unlawful—or just plain awful—parts of Prop. 2 would render the ballot title, the description of what the law proposes, misleading and deceptive. So severed, the law would not do what voters believed it would do if they approved it.

The proposed ban on coal trains differs from last year’s red-light camera ban in two important respects: First, what it proposes is clearly not within the city’s recognized power to decide. Second, city officials took no action and did not ask for injunctive relief to strike the earlier initiative from the ballot.

The Bill of Rights’ nullification strategy—to in effect dismiss federal and state authority and create an entirely new municipal regulatory and enforcement framework—is as constitutionally bankrupt as a Confederate C-note. Even if a small town of citizens could unilaterally unwind the federalist model, would they really want to? The nation’s environmental laws and protections are predicated on constitutional provisions, enforced through the power of Congress to regulate commercial activity. Meanwhile, the state’s shoreline and critical areas protections, despite shortcomings, are among the most robust in the country.

Perhaps most troubling to Snyder was the proposed ordinance’s provision under Section IV to deny project applicants access to the courts, a basic right for as many centuries as there have been courts. Its attempts to subordinate corporate rights and personhood, and limit the corrosive effects of that on democracy, while laudable, were frankly handled more adroitly earlier this summer by a council resolution and petition to Congress.

Having stalled this initiative from becoming bad law, Bellingham City Council was now faced with the thorny problem of whether they should quid pro quo place a question of their own to voters in November.

It’s worth admitting that we, as a community, really do not scientifically know the depth or extent of citywide support for or opposition to the proposed coal pier at Cherry Point. There’s a sense, a hunch, a vibe. An advisory ballot title could measure that, granular to precinct-by-precinct markers.

But what might such a question propose, given City Council has—alas!—no more legal authority to flat-out deny the transport of coal through the city than do citizens? And, having asked the question, was City Council prepared to live with those answers?

“It’s unclear what the community really believes about the coal pier proposal,” Council member Jack Weiss confessed. “We hear anecdotally one thing. We hear polls that describe another thing.

“I think it is important for us to know whether there is a strong preference one way or another, because that would help us in our efforts, and our obligations to the administration and staff in how much work they put into defending our interests in the project,” he said.

“If voters indicate they are opposed to coal, what more would we do than we are doing?” Cathy Lehman asked. “If they are not opposed, what would we stop doing that we are already doing?”

The great danger of post-Citizens United—a toxic decision that allows distant corporations virtually unlimited access to the levers of local political power—is that elections, like polls, can be bought. A poorly framed, poorly nuanced question, placed in haste on a ballot, would certainly activate a very sophisticated, moneyed lobbying effort with fewer than 100 days to organize a grassroots response.

In a tortoise versus hare matchup, beware of the sprint distance!

Some on council also recognized that the coming weeks, with the environmental scoping process appearing ready to begin this fall and city officials preparing their recitals, may not be the optimal time to plunge the city into a divisive and furious, likely extensively polarizing debate on the merits of coal transport. The culture ferment of a presidential election, drawing in scads of low-information, single-issue voters, might also unhinge results.

Council’s best role, Weiss admitted, “may be may be to encourage citizens to educate themselves on the issues, and to participate in the scoping process while it is occurring. After the scoping process is over and we better understand what that scope is, we should revisit this vote, think about it again.”

“Right now is the time for the community to come together on the scoping process,” Council President Terry Bornemann agreed. “This is the process that we can work on and we can do.”


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Past Columns

May 18, 2016

TRAILS VERSUS JAIL: City and county executives almost always get their way with their legislative councils. Almost always. But this year, they’re experiencing some pushback from their councils on matters… more »

May 11, 2016

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May 4, 2016

FOUR OR FOREVER: Few programs can boast the proven success of Bellingham’s Greenways. A series of three modest property tax levies since 1990 have provided revenues to acquire more than… more »

April 27, 2016

FIVE FAVOR FIVE: The Gristle was optimistic in thinking there would be consensus in the effort to draw five new voting districts for Whatcom County elections. After all, representatives from… more »

April 20, 2016

AG GAG: A berry farm in Whatcom County faces a $20,000 fine for allowing water contaminated with manure to discharge into local waterways that flow to British Columbia. Sarbanand Farms… more »

April 13, 2016

STATE OF THE COUNTY: County Executive Jack Louws delivered his annual address to Whatcom County Council last week, reviewing the year’s accomplishments and looking ahead to challenges and opportunities for… more »

April 6, 2016

PUZZLE PIECES: Late last week, the sponsor for the Gateway Pacific Terminal project announced they would suspend the environmental review process as they await the separate determination by the U.S.… more »

March 30, 2016

THE INSTRUMENTS AT HAND, 2: Legislative dysfunction at the federal and state level means local governments must sharpen their pencils to balance revenues and costs to avoid a structural deficit,… more »

March 23, 2016

THE INSTRUMENTS AT HAND: The continued blockade by the Republican conference in Olympia to any form of new revenues (despite being under a court order and sanction to create them… more »

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