This year poses a special challenge for me, since I teach classes on environmental law and policy. I have to figure out where in my syllabi to fit in the dominant paradigms governing development of the Gateway Pacific site at Cherry Point: the Think Method, the Retroactive Permit, and Enforcement By Telling the Truth. These are topics that I’ve omitted in the past, but even old dogs have to learn new tricks.
You may have read, in the Bellingham Herald or on Crosscut, about the consequences of the illegal land-clearing that took place at Cherry Point. (If you’re not familiar with the illegal land clearing, here’s a quick read.) The consequences are, in a word, minimal.
How can that be? Well, these consequences flow directly from the Think Method, as implemented by the Retroactive Permit and enforced by Telling the Truth. So clearly, these are aspects of the “system” that my students need to understand.
The Think Method: See No Evil, Hear No Evil
The Think Method goes like this:
The “truth” consists of whatever the proponent of a massive megaproject “intended,” regardless of any and all evidence to the contrary.
Therefore, if the proponents of a massive megaproject didn’t “think” that they were taking steps to develop a coal terminal, those "thoughts" should govern enforcement.
What other theory can explain this course of events?
The state Department of Natural Resources, or DNR, is a member of the Multiagency Permit Team, affectionately known among its friends as the “MAP Team”. Here are the DNR representatives to the MAP Team. This information is posted on the MAP Team web site (to which I have access, after much labor, but you probably don’t -- more on that here):
WA Dept of Natural Resources
WA Dept of Natural Resources
WA Dept of Natural Resources
What is a “MAP Team?” It’s the Gateway Pacific folks plus “staff and managers from federal, state, and local government agencies . . . assigned to the GPT project.” It’s been meeting since November 2010.
What’s “the GPT project”? “GPT” stands for “Gateway Pacific Terminal.” As the MAP Team web site tells us:
“The GPT project, which is being proposed by Pacific International Terminals, Inc., is a multi-user import and export marina terminal for bulk, break-bulk, and other marine cargoes. The project will include new rail loop tracks, covered and open terminal storage areas, and a pier and trestle connection to the terminal storage area.”So “the GPT project” is a forestry project, right?
HUH? you’re saying to yourself. A “terminal for marine cargoes” isn’t a forestry project!
Oh, yes it is. Under the Think Method, that’s exactly what it is. Here’s how.
As you may recall, the project sponsor initially claimed that the illegal land clearance at Cherry Point was not illegal because it was part of the “geotechnical investigations” authorized for the project. The GPT project, that is. As it turned out, the amount and location of land clearing wasn’t actually authorized at all, for anything (read more about that here). Oopsie.
So the project sponsor changed tactics. It told the DNR that it didn’t really “intend” to convert land. You know, “convert” land from forest to something else, say, the GPT project.
DNR, having sat on the MAP Team that was convened for the sole purpose of overseeing the conversion, er, development, er, immaculate conception of the GPT project, concluded after much thought and consideration that the purpose of the illegal land clearing was . . ..forestry. Not conversion, which is another name for development. That wasn’t the “intent.”
Think Method? Magical thinking? Something else, some je nais se quois that would not apply if you or I cut down all that timber? Pick your terminology. I think that they’re all names for the same phenomenon.
Retroactive Permit: Oopsie
Is it better to ask for forgiveness than to beg for permission? That is not what I’ve taught my students. I have, however, said things like this:
Big projects are big targets. Because everybody is watching, there’s a lot more pressure to make sure that everything is done right.
Oh yes, I have said that to students. To entire classes. More than once. Based on my experience working on big projects – outside Whatcom County, but with some of the same agencies that work here.
Perhaps I should modulate my statement. Perhaps it should read:
Big projects need to be big targets. Only when everyone is watching is there pressure to make sure that the projects are done right.
When everybody assumes that nobody is watching, and when nobody IS watching except a couple of dogs, projects apparently aren’t done right.
But there’s an antidote to doing things wrong: Retroactive Permits.
The Gateway Pacific project will receive Retroactive Permits, which will bring the project under the protective wing of the law. With a price tag of $2,000 in penalties. Doing it right tends to cost a lot more than that. Oh, and to make the Retroactive Permits work, the Environmental Impact Assessment has to be piecemealed. Oopsie.
I don’t want to teach my students that requesting forgiveness is better than asking for permission. In fact, my courses are calculated to teach the opposite lesson. If students talk to me in advance and have a good reason, they can hand papers in late. If they hand papers in late without clearing it with me, their grades suffer.
Perhaps I need to rethink this policy, in order to prepare them for the real world. Those who shove their papers at me whenever they feel like it should get preferential treatment. That would teach them more about Retroactive Permits than mere words could express.
Enforcement By Telling the Truth
What happens if the Retroactive Permit is violated? Will the Think Method ride to the rescue? (Well golly, we didn’t INTEND to do anything wrong. . .)
Perhaps not. It appears that there’s a statute of limitations on the Think Method. As reported in the Herald and Crosscut, Whatcom County has warned the project proponent in no uncertain terms that, if it doesn’t meet the terms of its Retroactive Permit, the County will bring down the ultimate punishment:
It will tell the truth about the project.
That’s right. If the Retroactive Permit is violated, Whatcom County has threatened to forward a letter to DNR stating that the County has ‘become aware of conversion activities to a use other than commercial timber operations.' "
So here’s our narrative.
But for the Think Method, the agencies would have to find that the original illegal land clearing was, in fact, “conversion.” Whether or not the terms of a Retroactive Permit have been met, the nature of the original violation doesn’t change -- it either was or wasn't conversion.
So what must happen is that the Think Method wears off – kind of like fairy dust – over time. If too much time passes (the project proponent has until 2014 to meet County requirements), the County is no longer bound by the Think Method and is allowed to tell the truth.
A mere three years from now, the County will be allowed to wield the truth like a sword.
In the meantime, I have a more immediate problem: how to teach my students to function effectively in this world. And in all reality, I’m not going to teach them to assume that our environmental laws and policies can’t work as they were intended.
And so, I’m still going to talk about two essential truths that my experience has taught me. First, at all levels of government, there are people who are there because they want to do the right thing. If we want them to do the right thing, we have to figure out how to help them to do their jobs the way they want to. We need to elect people who will be good bosses, and we have to make their agency bosses know that citizens care about the job that they’re doing.
Second, our system of environmental law and policy is unique in the world in the number of pressure points that are available to citizens. Is it quick, easy, painless, cheap, and always effective to write letters, speak at hearings, contact politicians, bring lawsuits? No. Speaking truth to power is an expensive and exhausting activity. But the alternative has its costs, too.
Margaret Mead once said:
What people say, what people do, and what they say they do are entirely different things.
And it was also Margaret who said:
Never doubt that a small group of thoughtful, committed, citizens can change the world. Indeed, it is the only thing that ever has.
My students like that second quote. The Gateway Pacific project highlights the fact that they need to hear the first quote, too. And to understand that both quotes exist in the same world.
As F. Scott Fitzgerald said, “The test of a first rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function.”