Fictions in Collision
FICTIONS IN COLLISION: Whatcom County Council held a long and crowded, rancorous session on the update of the county’s Comprehensive Plan last week. The Comp Plan update is intended to shape a shared vision for the future in the context of expected growth and economic development. The reason for the ruckus was obvious—by hook and by crook, in a roundabout way, after spending nearly seven long pent-up years mincing around and avoiding the subject, County Council finally heard public testimony on the proposed coal pier at Cherry Point.
The catalyst for the eruption was amended language proposed by the Lummi Indian Business Council for Chapter 2 of the Comp Plan on land use:
“While the county recognizes the uniqueness of Cherry Point for industrial uses, the shipment of coal, or crude oil, from any new or existing pier, is detrimental to both the environment and quality of life in Whatcom County due to the severity of the environmental impacts, and should be specifically excluded from any future uses at Cherry Point.
“...Should the Cherry Point development moratorium be lifted, the shipment of coal, or crude oil, from any new pier will be prohibited.”
Two versions of this proposal exist: The rather innocuous language quoted above—the actual text submitted by Lummi Nation—that recognizes the environmental impacts of carbon fuels, and provides safe harbor against aggressive initiatives by the energy industry, and erosions crafted by Congress and through international trade agreements that threaten the health of Puget Sound. And the fictional version planted in the minds of Whatcom conservatives by front groups like the Northwest Jobs Alliance (NWJA) that teased out only the last clause of the last paragraph and labeled it a jobs killer. Enraged, conservatives showed up in droves to condemn the fictional version.
While the real and fictional versions were discussed in evening testimony as Council listened without comment, the real one is not preemptive and does not attempt to prohibit industrial uses already permitted and underway at Cherry Point. In other words, it says nothing about current conditions in the county’s heavy industry zone and the 11 employers currently there. It kills no jobs that actually exist and only narrowly constrains certain jobs that may be created in the future.
In December, congressional leaders agreed to lift the nation’s 40-year-old ban on oil exports, a historic action that reflects political and economic shifts driven by new U.S. energy initiatives like mining and fracking. The action serves to weaken provisions in the Magnuson Amendment to the Marine Mammal Protection Act of 1972 that limit supertankers in the Puget Sound; yet it contained sufficient goodies that it gained support from Washington senators. Moreover, export provisions in the Trans-Pacific Partnership trade pact also on the verge of being signed into law could weaken local control over land-use decisions. The Lummi proposal—the real one—is prescient in its understanding that Whatcom County should shape its response to these energy initiatives through stated policy and developed public trusts.
Neither the real or fictional version is likely to be adopted by Council, but the Lummi submittal—as one governmental entity to another on official matters of a Comprehensive Plan update currently underway—did serve to dynamite a fiction of a different sort, that Council can hear nothing about a coal pier proposal until the proposal is immediately in front of them for approval.
For six years, the County Prosecutor’s office has discouraged Council from hearing public opinion on the proposed Gateway Pacific Terminal at Cherry Point, believing that such opinion could taint Council’s deliberations in a quasi-judicial decision on the permitting of the facility. Like a jury before a trial, Council should know as little as possible about the specific details of the proposal, the county’s legal policy theory has maintained. The Council office has even gone so far as to screen written opinion, and actively discourages (forbids) comment on GPT during Council’s open comment period, the only topic that receives such a sanction. In other words, the most transformative land use decision in Whatcom County is the only subject that is taboo.
It is a childish, one-dimensional fiction spun up by the prosecutor’s office.
The purpose of the caution is to discourage ex parte communication with representatives serving in a quasi-judicial role. An ex parte communication is a one-sided discussion between a decision-maker and the proponent or opponent of a particular proposal that takes place outside of the formal hearing process on a quasi-judicial matter, a covert communication in the absence of representation or notification of other parties. Comments delivered at a public meeting or in written comments subject to public disclosure do not fit the definition of ex parte communication.
For six years, this ridiculous policy has stifled and strangled and silenced the public’s access to their elected representatives on a crucial matter of public policy while a permitting process has ground on and gone dark. Wrongheaded counsel has denied the public their rights to be heard. But, concerning the land use portion of a document that derives its authority from robust public involvement in all of its parts, the childish prohibition could not stand. Hence the dam breached, and discussion of the Comp Plan burst over into nearly four hours of fulsome discussion that included coal export at Cherry Point.
The outburst and fallout from one fictional grievance may have served to dislodge another fiction whose grievances are very real indeed.
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