A three-judge appeals court panel will hear oral arguments Thursday over whether the Port of Vancouver skirted the state’s environmental rules in approving a lease for what would be the nation’s largest rail-to-marine oil transfer terminal.
Attorneys for Columbia Riverkeeper and Northwest Environmental Defense Center contend the port unlawfully adopted the lease before understanding the oil terminal’s environmental and human health risks. They’re asking the appeals court to overturn a lower court’s decision and to void the contract, unanimously approved in 2013 by the port’s elected commission.
The port’s attorneys dispute those allegations, asserting that Clark County Superior Court Judge David Gregerson made the right call in January 2014 when he ruled against the environmental groups in their initial complaint. The port, they argue, signed a contract that gave project proponents assurances but that made sure a full environmental-impact analysis would occur.
The appeals court isn’t expected to decide the matter today.
At issue is whether the port’s approval of the lease with Tesoro Corp., a petroleum refiner, and Savage Cos., a transportation company, ran afoul of Washington state’s Environmental Policy Act.
First adopted in 1971, the landmark environmental law aims to ensure that environmental values are considered during decision-making by state and local agencies. That includes considering such information as impacts, alternatives and mitigation before taking a particular action.
Today’s appeals court hearing is part of a larger thicket of litigation directed at the oil terminal contract. It arrives as the proposed oil terminal undergoes an environmental impact analysis by the state Energy Facility Site Evaluation Council.
This week, a consultant informed the evaluation council that a draft of the impact analysis, which is being conducted under the state Environmental Policy Act, will be published on Nov. 24. The updated schedule marked another delay in a knotty review process that began nearly two years ago when Tesoro and Savage submitted their permit application.
It’s unclear what, if any, impact an appeals court ruling would have on the review process. In asking the appeals court to void the current oil terminal lease, however, the environmental groups argue the port should wait until the impact analysis is released and then use it to inform a lease decision.
Oral arguments in the appeals court case are slated to be heard at 10 a.m. today at the Washington state Court of Appeals Division II in Tacoma.
The parties in the case are battling over everything from statutory language to the flexibility of the lease, court documents show.
Attorneys for the port contend the law that governs the Energy Facility Site Evaluation Council exempted the port from conducting an environmental impact analysis. Rather, they argue, the evaluation council is the appropriate agency to handle the analysis because of its charge to oversee proposals for large energy projects. The law governing the evaluation council “pre-empts regulation of the project by other state and local government entities,” according to attorneys David Markowitz, Lawson Fite and Kristin Asai with the Portland law firm Markowitz Herbold, which is representing the port.
Attorneys for the environmental groups agree the evaluation council is the lead agency in carrying out the impact analysis. But while the evaluation council has authority over the regulatory permitting decision, they argue, it does not pre-empt proprietary decisions by the port to lease or sell public lands.
As a result, they argue, the port was required, under the state’s environmental law, to receive a study of the oil terminal’s impacts before entering into the contract.
The environmental law’s goals of “informed environmental decision-making, public disclosure, and agency accountability would all be better served if the port made its leasing decision after considering” the impact analysis, according to Miles Johnson, attorney for Columbia Riverkeeper, and attorneys for the Seattle law firm Smith & Lowney.
The port could have continued to exclusively negotiate with Tesoro and Savage while the impact analysis was being conducted, they argue. Instead, the port signed a binding lease that creates a bias for the oil terminal before the project’s impacts are revealed.
“The lease does not allow the port to prevent construction of the terminal if the (environmental impact statement) reveals unforeseen or unacceptable risks,” they argue.
The port’s attorneys disagree. “The lease is conditioned on the outcome of the environmental review process and preserves discretion for the port to respond to review,” they argue. “The port’s execution of the contingent lease did not limit the range of reasonable alternatives.”
