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Cherry Point

Council begins work to reduce fossil fuel impacts

Wednesday, February 28, 2018

What can Whatcom County Council do to limit the export of unrefined fossil fuels? Not much; a little, and it needs to be well-documented and coordinated.

That was the message from Rodney Brown, an environmental attorney for Cascadia Law Group, as he presented a consultant’s report on reducing the potential impacts from fossil fuel export projects to Council on Tuesday evening. Brown was one of several attorneys who produced the report.

“Whatcom County would need to build a strong factual record to support any ordinance” to limit the impacts of these projects, Brown advised. “It should focus on local environmental and health impacts. Such findings are important in defenses against federal challenges and to support compliance with state land-use laws.”

Council had requested a study of planning policy and land-use regulations that might help elected officials assess options available to protect the local community from economic, environmental and health impacts of proposed fossil fuel export facilities in Whatcom County. The study was intended to help Council consider the next steps of their temporary ban on applications for such projects at Cherry Point.

Dozens of citizens and activists showed up at County Council’s regular session this week to urge that body to continue to extend their moratorium as they work to develop permanent policies that strengthen public health and safety outcomes as planners consider applications for an expanded fossil fuel presence in the Cherry Point heavy industry zone.

Council first passed the moratorium on Sept. 27, 2016, to gain more time to consider proposed amendments to the county’s Comprehensive Plan that apply to the Cherry Point Urban Growth Area. Among their concerns, a rapid expansion of export capacity could send unrefined fuels away from our shores and actually undercut local refinery and processing jobs.

The study is part of their work plan.

The study lays out recommended changes to the county’s permitting process for major industrial projects that would help planners better control outcomes and ensure external impacts for those projects are compensated for by the developer.

Consultants said durable local regulations that can stand in court face two primary challenges—they must conform to state land-use law and, more formidably, federal constitutional law. The latter includes the so-called Commerce Clause—Article I, section 8, clause 3 of the United States Constitution—which gives Congress vast powers to regulate commerce across state lines.

“This is probably the constitutional issue of greatest concern to local governments attempting to protect their local interests in the face of proposed fossil- fuel-related developments,” Brown noted in his firm’s report.

“The Supreme Court has determined that this is more than just an enumeration of federal powers,” he explained, but serves as an actual limit on state and local powers.

“The Court has articulated a three-prong test for use in reviewing state or local laws under the Commerce Clause,’” Brown noted. “If a state or local enactment violates any of these, their action would be invalid.”

The three-pronged test requires that out-of-state business interests cannot be treated less favorably than in-state or local interests; it cannot attempt to regulate or control the conduct of that business outside of the state or local jurisdiction; and—most saliently for the issue of fossil fuel products at Cherry Point—such regulation may not be “clearly excessive” in balancing local benefits against business interests.

“A clear record needs to be built around these traditional land-use and public-safety considerations and the Council must avoid findings, statements or justifications that would lead to Commerce Clause concerns,” Brown cautioned.

If local policies meet these hurdles, they stand a chance of holding up in a legal challenge to a permitting decision.

The challenge is a formidable one for Cherry Point, in particular, which is already home to the sorts of heavy industry and fossil fuel processing a Council majority seeks to limit through changes to county code. Other areas—such as Portland, Ore.—have sought to limit such projects as an entire class because they do not already exist in that jurisdiction.

“The county should consider making a ‘fair share’ argument in order to justify restrictions on future projects without imperiling existing operations in the county,” Brown advised. “In other words, the county is happy to accept its fair share of impacts from fossil fuel facilities, but the new projects create impacts that are more than what is fair.”

Local governments do have certain tools that can push back against the supremacy of commerce as it is defined by federal constitutional law. Among these are treaty fishing rights established by the federal government with Pacific Northwest Indian nations and—uniquely for Washington—the 1977 Magnuson Amendment to the Marine Mammal Protection Act, which attempts to limit the adverse impacts of oil imports and exports in Puget Sound.

“It limits federal authority to grant or issue permits that would result in an increase of the volume of crude oil handled at any given facility,” Brown explained. “If a local ordinance imposed a similar limit, the Magnuson Amendment could be used to defend it from any Commerce Clause or preemption claim, in that the local ordinance would not conflict with the federal law.

“This issue has been raised regarding proposed developments at Cherry Point in the past, and is still before the Corps of Engineers and the courts with respect to a BP pier addition that was previously constructed,” Brown said.

State law provides even more tools, including the Growth Management Act, Shoreline Management Act, and the State Environmental Policy Act (SEPA). These would require some strengthening within county code and county permitting procedures if they were intended to push back strongly against federal supremacy and preemption claims.

“Extending beyond treaty rights, the county could certainly identify protection of fisheries and habitat as a legitimate state and local interest,” Brown advised. “Policies of both the Shoreline Management Act and the Growth Management Act identify protection of valuable shoreline and aquatic resources and habitat as legitimate state and local interests.”

“An effort needs to be made to ensure that whatever option is chosen is consistent with GMA policies and that the various provisions are internally consistent,” the consultant’s report concluded. “That is, the Shoreline Master Program, the zoning ordinance provisions, and any procedural requirements must be consistent with each other and with the applicable provisions of Whatcom County’s land use ordinances. An amendment process must ensure that the final option chosen is consistent throughout Whatcom County’s various Comprehensive Plan, Shoreline Master Program policies, and shoreline regulations and zoning regulations.”

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