‘A Win for Whales’

Court pauses Cherry Point refinery expansion

Wednesday, April 14, 2021

Hailed as a victory for orcas, Whatcom County Superior Court revised a project application from the Phillips 66 Ferndale Refinery to install a 300,000-barrel crude oil storage tank and an 80,000-barrel floating storage tank for fuel oil in a tank farm within the refinery at Cherry Point.

The decision could require the Phillip’s 66 refinery to provide additional details about the purpose and specifics of the proposed storage facility.

In early 2019, the Phillips 66 Refinery applied to Whatcom County for permits to install a storage tank for crude oil and an additional storage tank for fuel oil. The stated purpose of the proposed project is to provide additional operating flexibility to manufacture low-sulfur marine fuels in compliance with new regulatory requirements. However, when completing the required State Environmental Policy Act (SEPA) checklist, the refinery did not quantify the amount or types of vessel traffic associated with this project, and thus Whatcom County was unable to assess the potential impacts of increased vessel traffic on the Salish Sea ecosystem—including potential impacts to the region’s endangered Southern Resident killer whales.

If completed, the project could potentially increase the shipping of an additional 12.6 million gallons of crude oil through the Salish Sea, marine advocacy groups noted in a challenge of the proposal. In 2019, Whatcom County Hearing Examiner Rajeev Majumdar agreed to a revised determination of those potential impacts under SEPA. Phillips 66 challenged that revision.

Whatcom County Superior Court Judge David Freeman upheld the decision and found the permit application had failed to adequately address the potential impacts related to an increase in vessel traffic on orca populations.

“More storage tanks usually mean more tankers, and Phillips 66 didn’t quantify the amount or types of vessel traffic associated with this project,” Lovel Pratt, marine protection and policy director for the advocacy group Friends of the San Juans, noted in a press release. “That prevented Whatcom County from assessing the potential impacts of project-related vessel traffic on the Salish Sea ecosystem, including impacts to the region’s critically endangered southern resident killer whales. Friends submitted comments; however, the revised Mitigated Determination of Non-Significance (MDNS) didn’t adequately address the project’s potential impacts to the orcas.”

Friends of the San Juans appealed Whatcom County’s initial determination of nonsignficance, and in November 2019 the modified decision required mitigations to help ensure that this project will not likely result in significant adverse impacts to resident orcas.

Phillips 66 file an appeal, claiming they needed operational flexibility.

According to the opinion filed last week by Judge Freeman, “the Court concludes that the hearings examiner did not exceed his authority in modifying the conditions in his final order,” noting that “the record is significant with respect to environmental impacts of increased vessel traffic on resident killer whales.”

“The project does increase storage capacity,” Freeman admitted in his ruling. “Whether this increase increases vessel capacity is not speculative, rather it is dependent on how Phillips 66 chooses to use the new facility. Phillips 66 maintains the need for ‘flexibility,’ essentially asking the county to simply trust that it will be used for a purpose that will increase vessel traffic.

“Indeed,” Freeman commented, “Phillips 66 could theoretically reduce processing production while increasing crude export without having a net effect on vessel traffic. Or, use the facility temporarily for the purpose of transferring crude oil with no net effect. Consequently, the Court finds the modifications overly broad with respect to the impact being addressed.”

Fewer than 80 resident orcas remain in existence in the Salish Sea. In March 2018, Governor Jay Inslee focused attention on their decline, establishing a Southern Resident Killer Whale Recovery and Task Force to “identify, prioritize, and support the implementation of a longer term action plan needed for the recovery of southern residents and necessary to secure a healthy and sustained population for the future.”

In response to task force recommendations, the 2019 Legislature enacted a budget that included $1.1 billion in support of southern resident Killer Whale protection and recovery.

Among the task force’s recommendations, members placed emphasis on identifying potential threats that vessel traffic impacts, and oil spills in particular, play in the overall vulnerability of the Southern Resident Killer Whale population. The whales are listed under the Endangered Species Act, in part, because of concerns about potential oil spill impacts.

“Their small population size and social structure puts them at risk for a catastrophic event, such as an oil spill, that could impact the entire population,” a National Marine Fisheries Service report indicates.

The state’s emphasis runs parallel to Whatcom County Council’s efforts to craft policies and procedures for permitting projects that might increase crude oil export projects at Cherry Point.

“Project applications that would increase vessel traffic in critical orca habitat should always be required to thoroughly address potential impacts,” Lyles commented on the decision. “Whenever possible, we need to reduce and not increase vessel noise and presence impacts, the risk of ship strikes, and oil-spill risks for this beloved and endangered population. This decision is an historic victory for the southern resident killer whales and the Salish Sea ecosystem.”

Freeman noted the state’s interest in protecting resident killer whale habitat. With Judge Freeman’s final decision, the 2019 Hearing Examiner decision has largely been upheld, and strengthens an interpretation of Whatcom County Code that grants broad authority to the Hearing Examiner in determining permitting conditions under SEPA.

“We’re very excited about this ruling,” Brent Lyles, executive director of Friends, said.

Friends of the San Juans is a nonprofit dedicated to protecting and restoring the San Juan Islands and the Salish Sea for people and nature. Founded in 1979, the organization has become a leading proponent of safe shipping, clean water, healthy forests and farmlands, natural beaches and resilient communities.

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