New details in the contract that undergirds a proposed rail-to-marine oil transfer terminal at the Port of Vancouver, released Thursday as part of a legal settlement, hand a victory to critics of the port’s lack of transparency. The new information also arrives during a highly charged political season that will decide whether an opponent or backer of the oil terminal joins the port’s three-member board, which could face a decision next August whether to walk away from the lease.
The lease disclosures reveal several pieces of information the port previously refused to make public about its contract with Tesoro Corp., a petroleum refiner, and Savage Cos., a transportation company, operating together as Vancouver Energy. On Thursday, the port and its critics publicly dueled over the meaning of the disclosures in a contract that, since 2013, has underpinned a project proposal that roils the community to this day.
“It’s now been two years since the Vancouver Energy lease was first approved,” port CEO Todd Coleman said in a news release. The state-level examination of the oil terminal’s impacts “is stretching on, and other circumstances around the lease and earlier redactions have changed. We’re now at a point where we feel releasing this information is important for transparency, and poses little risk to the port’s ability to remain competitive.”
John Karpinski, one of two plaintiffs that alleged violations of the state’s Public Records Act in a lawsuit filed against the port in May, saw it differently. The settlement forced by the lawsuit represents a win for the public and for government transparency, he said, despite the port’s insistence on concealing parts of the contract. “What changed is that we filed a 50-page brief that destroyed (the port’s) legal position,” said Karpinski, who is an attorney. “That’s what changed.”
The settlement is between Karpinski and Clark County Natural Resources Council, of which Karpinski is a member, and the port. As part of the agreement, the port paid $45,000 to the plaintiffs, represented by Jacqui Brown Miller, an attorney with Olympia-based Jessica Jensen Law.
The lease revelations mark the latest twist in an ongoing battle over whether what would be the nation’s largest such oil terminal should be built in Vancouver. The contract details emerge as state and federal regulators study the project’s environmental impacts and as two candidates for port commission — opposed in their positions on the oil terminal — square off in the Nov. 3 general election.
‘Avoid … litigation costs’
Having emerged as the top two vote-getters in this month’s primary election, District 2 port commission candidates Eric LaBrant and Lisa Ross weighed in Thursday on the settlement and lease disclosures.
Ross, who supports the oil terminal, said it’s good to have one less thing to argue over about the project and “to have everything out in the open.” “I know the port thought it was complying” with the public records law, she said, and now with the agreement in place “this can’t be argued again, so that’s a very exciting development.”
She also said: “We need to be worrying about jobs now” and how to boost oil-train safety, and to “not be arguing with each other as much.”
LaBrant, who opposes the oil terminal, said the lease disclosures mark “a clear victory for transparency, for allowing taxpayers to know what we’re on the hook for, and what our options are for terminating the lease. Now we understand why Tesoro pressured (the state Energy Facility Site Evaluation Council) to speed up the process.”
He went on: “Can we attract other job creators that will make more sense in a place like the Pacific Northwest? Absolutely. Having the full lease crystallizes the port commission election into jobs vs. oil. I’ll take jobs over oil any day.”
The settlement of the public records lawsuit occurred over the past couple days, even as the parties appeared headed for arguments before a Clark County Superior Court judge today.
In a July 31 filing with the court, the port’s attorney, Lisa Lowe, informed Judge Robert Lewis that the port “has engaged in active communications with counsel for the plaintiffs regarding settlement of this case without need for court intervention.”
As part of the settlement, Tesoro and Savage agreed “not to object, in any legal forum, to the port’s disclosure of this information.” Conversely, Karpinski and the resources council agreed to waive statutory penalties under the state’s public records law and to not revive their lawsuit against the port in the future.
“The acceptance of this settlement agreement is not to be construed as an admission of liability by any party,” according to the settlement. “Defendants intend for payment of the funds and this settlement to avoid further litigation costs.”
‘Broad mandate’
Even before the public records lawsuit came close to going to court, the opposing parties had unleashed initial legal filings and declarations. And Tesoro and Savage had won the right to intervene in the dispute to defend their interests.
If certain information in the lease became public, then competing ports could try to undercut the Port of Vancouver and woo away Tesoro and Savage, Kelly Walsh, an attorney for the port, had argued.
Miller, the attorney for Karpinski and the resources council, contended the port’s claims of trade secret exemptions “constitute a flagrant violation of (Washington’s Public Records Act) and amounts to an abuse of public power.”
The port also said in its statement that it released three versions of the 429-page lease “as the project matured, each with fewer redactions than the one before. The first version was released with 22 redactions in July 2013. The second version, with 11 redactions, was released in April 2014.”
In a July 17 legal brief, Miller contended that the “Washington Legislature’s broad mandate in favor of public disclosure cannot be overcome by a culture of regional competition among public ports.”
Karpinski said Thursday he guesses the port’s first impulse was to find a way to hide the lease information. Rather than err on the side of transparency, he said, the port “kicked it to staff to find a reason to justify” keeping details from the public.
