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The Gristle

Lost initiative

Wednesday, August 8, 2012

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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