Wednesday, January 18, 2017
STORMIN’ ORMA: The Washington Supreme Court substantially raised the bar for the siting of additional crude export projects on the Pacific coast, even as Sen. Doug Ericksen introduced legislation that could make that siting easier. Like a bar fight that moves titanically from room to room, the push-pull of the struggle to site export projects inevitably crashes back to Cherry Point—the last place where such projects may be permitted.
The high court justices last week overturned the ruling of a lower court that the state’s Ocean Resources Management Act (ORMA) did not apply to oil shipping terminals. Justices disagreed, noting, “ORMA is designed to address environmental threats to our coastal waters and specifically addresses the threats posed by increased expansion of the fossil fuel industry along the Pacific Coast. …The language of the statute indicates that the legislature intended it to combat current environmental dangers and to preemptively protect the coastline from future environmental risks.”
The ruling means the law may block the last proposed crude-by-rail terminal in Hoquiam, a project that planned to move millions of gallons of crude oil out of Grays Harbor and through Washington’s open ocean every year. The Washington Dept. of Ecology found that these projects create serious and harmful risks of oil spills, collisions, derailments, fires, and explosions that would cause significant and unavoidable environmental damage. An economic study commissioned by the Quinault Indian Nation found that a major oil spill could put more than 150 tribal commercial fishermen out of a job, resulting in a direct loss of as much as $20 million in wages and up to $70 million in revenue for affected businesses. As justices noted in their brief, ORMA was specifically passed in 1989 in the wake of the Exxon Valdez oil spill in Alaska and that of the Nestucca, which spilled “black tar crude” bound from Cherry Point into Gray’s Harbor. When the legislature passed the law, it explicitly noted the danger that oil spills pose to the state’s marine environment.
“ORMA is a balancing tool intended to be used by local governments to weigh the commercial benefits of coastal development against the state’s interest in protecting coastal habitats and conserving fossil fuels,” justices wrote. “If a statute’s meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.”
The ruling follows another recent crippling blow to the shipment of fossil fuels out of the southern portion of the state, after the state Dept. of Natural Resources (DNR) in January denied an aquatic land sublease that would have served as a staging area for the proposed Millennium Bulk Terminals in Longview. The decision heaps additional economic uncertainty on a coal port proposal that is already on shaky financial ground.
As each of these projects fall away, Cherry Point appears ever more likely as the final battleground for a cataclysmic throwdown with the fossil fuel export industry.
Simultaneous with their Longview decision, DNR also removed a “cutout” intended for a fourth pier within the state’s aquatic reserve at Cherry Point. Aquatic reserves were established to preserve and restore state-owned aquatic lands. Removing the cutout withdrew an invitation to permit a construction there that could threaten marine assets, and likely removed the possibility of a long-imagined fourth pier on lands zoned by the county for heavy industry.
Fighting back hard, Ericksen this week introduced Senate Bill 5171, described as “an act relating to certain uses of state-owned aquatic lands.” If enacted (which is not at all certain), SB 5171 would specifically direct “the Commissioner of Public Lands to rescind the January 3, 2017, commissioner’s order” for the redesignation of the Cherry Point aquatic reserve. The bill would also cripple the capacity of any future lands commissioner to consider such protections in the future, stipulating that:
“The management of state-owned aquatic lands shall preserve and enhance water-dependent uses. Water-dependent uses shall be favored over other uses in state-owned aquatic land planning and in resolving conflicts between competing lease applications. In cases of conflict between water-dependent uses, priority shall be given to uses which enhance renewable resources, waterborne commerce, and the navigational and biological capacity of the waters, and to statewide interests as distinguished from local interests.”
In other words, SB 5171 stands ORMA on its head.
Ericksen’s bill would force the lands commissioner (an elected representative with constitutional authority over state lands) to get legislative approval before authorizing aquatic reserve expansions. The bill includes a provision to lower the costs for easements across those state aquatic reserves, public lands made even cheaper for industry to smash open.
Whatcom County Council may come to regret holding open the permit application for the Gateway Pacific Terminal that would have used a fourth pier at that location to ship up to 48 million tons of coal per year out of Cherry Point. Council last fall agreed to delay action until the environmental review that had been prepared to that point had been assembled for publication. The delay also permitted additional consideration of certain amendments to the comprehensive plan for Cherry Point’s industrial lands that might be more circumspect about new projects that intend to export unrefined fossil fuel products overseas—more tools that, in the language of the Supremes, are “intended to be used by local governments to weigh the commercial benefits of coastal development against the state’s interest in protecting coastal habitats and conserving fossil fuels.”
But the delay more and more appears intended to yield opportunities for a new administration and new legislation to throttle public interests to maximize the profits of a challenged industry.