Wednesday, March 21, 2012

Coal Terminal Update: Whose Process Is This?

Photograph by Paul Anderson
As you've probably heard by now, there was a spillover crowd at Bellingham High School tonight for the Gateway Pacific Coal Terminal "pre-scoping" forum, put on by some very nervous lead agencies. 

The police presence was quite noticeable, and the evening kicked off with stern warnings of expulsion for bad behavior. As it turns out,  I was probably the worst-behaved person there, because I was bored to tears during the first hour and kept texting friends in order to keep awake.  I'm glad that the police didn't cite me for rudeness.

Everybody else listened politely and quietly.  I hope that they learned something.  I use similar slides when I teach Environmental Impact Assessment, and I'm not convinced that they do any good at all.  But more is at stake here, and adult learners predominated, so here's hoping that the information made sense.

The second hour allowed members of the audience to ask questions of a panel of agency personnel, including representatives of the County, the Department of Ecology, the Attorney General's office, and the Army Corps of Engineers.  Randel Perry, representing the Army Corps, might need some training in bureaucratic double-speak, because he actually answered the questions that people asked him.  The crowd didn't always like the answers, but Randel was knowledgeable and straightforward.  Hooah to the Corps.  Whatcom County's Tyler Schroeder got most of the questions and did his best to answer.  When he didn't know something, he didn't pretend.

Some of the others were a little less accustomed to dealing with the public.  That's a symptom, perhaps, of sitting around a table behind closed doors with the MAP team for the past two years.  You come out into the daylight, blinking, and there's a room full of 800 just plain folks.

The questions were excellent.  I wish that I could have answered one of them.  My answer would have been different.

Somebody asked if the public comment period could be longer than 60 days, for both the scoping period and for review of the draft Environmental Impact Statement. The answer, boiled down to its essentials, was "no."  (The actual answer didn't actually include the word "no" and took about 500 more words, but that was the gist of things.)

But guess what?  The real answer is "yes." 

The agencies can (and often do, at least under NEPA) provide more public review time.  For a project of this magnitude, a 60-day scoping period is pretty minimal, and allowing only 60 days to review a draft Environmental Impact Statement that is projected to take two years to prepare would be crazy.

So why are the agencies saying that they won't provide more time?  

Possibly because the applicant has to agree to a scoping period of longer than 30 days under SEPA (see WAC 197-11-410(4)), and perhaps the applicant doesn't want to agree to more than 60 days. 

Applicants always want the shortest possible review periods.  That way, people have less time to review. And maybe to criticize, or find problems, or raise difficult issues, or think of alternatives.

But let's think about this.  
  • The applicant and the agencies have been meeting for two years. Two years to understand and process information relating to the project and its necessary permits.
  • The applicant submitted an incomplete application to Whatcom County and got extensions.  
Isn't it a little bit lopsided for the agencies to meet in private for two years with the applicant, to give the applicant all the extensions that it wants, and then to turn to the public that wants more than 60 days to comment on the scope of this enormous project and say:

"MORE?  You want MORE?"

The lead agencies could, quite reasonably, tell the applicant that more time is needed for public and agency review in order to prepare an adequate environmental impact statement.  The applicant could put its foot down and say "no," of course, but it would do so on the understanding that the lead agencies did not believe that enough time was provided to prepare an adequate document. And the applicant would understand that, if the agencies don't believe that the document is adequate, they are under no obligation to approve the project.

As a result, the wise applicant will usually agree to reasonable extensions of time.  

So why don't the agencies request a little more time for the public to have a say?

Don't forget, the reason that we have a MAP team is to expedite the process.  For the applicant.


  1. Good job, Jean. I left thinking that we should have an alternative forum that answers the questions. Like, why can't the County Council read information that is in the record? Are they expected to read it all in a 2- week Period?

    They didnt talk about the Major Permit process and the role of the Hearing Examiner- the same person that allowed sewer extensions into rural parts of Lake Whatcom that fueled all that growth 10 years ago. The same person that allowed agricultural land to be divided into small lots based on a faulty interpretation of the law.

    We could also answer questions directly about what authority an EIS really has -- which is really little.

    But I left early. I just couldn't take it any more.

  2. Thanks Jean, With an estimate for scoping to begin in early to mid-summer, what, in your estimation, would be a reasonable extension for scoping? 30 additional days? More? Considering that somewhere near ten percent of the population of Whatcom County skips town each summer (WWU students), certainly the agencies must (they must!, they must?) make some effort to include or at least accomodate students in the process if asked to do so. In your view, how is an organizer that wants to work with students on submitting comments best to go about that when the timeline that was proposed last night is so discouraging of that? Work alongside other groups to request an extension to the scoping period? Collect comments ahead of time (Spring Quarter) and submit them during the scoping period? Thoughts?

  3. That is a great idea, David. We should have an alternative forum, with people like you, Jean, Resources, Community Wise, etc, fielding SEPA project questions from a crowd and giving your version of the answers.

    Do it! Do it! Do it!

    Who else agrees? Let Jean and David know.


  4. Eric, Jean may disagree from a legal perspective, but scoping time periods don't concern me. Study everything is what will be submitted along with reasonable alternatives. And the applicant has a lot of control over the alternatives chosen.

    The real time period that needs changing will be the review of the Draft EIS. the public and other groups might want to conduct their own independent studies if they find the draft lacking. We can also assume that the document will be volumes long, which make take 60 days to read, let alone analyze.

    We are not in a situation where a court has imposed deadlines, so the more time to review and digest, the better for all.

  5. Doesn't hearing examiner make recommendations for both major project and shoreline substantial development permits? He did in '97. WCC seems to say so. So I was bemused last night when Tyler (I thought) said he would be providing information to the county cuoncil (Uh, is that true or aren't they limited to the record they receive from the HO?), and that that will be our opportunity to comment before the county (Again, Uh, I thought they make a determination in closed session, unless they want additional hearings, blah, blah, blah). Did I misunderstand Tyler, the code, or both?

  6. I think that the scoping period matters for this project, for at least two reasons.

    The first is, well, the scope of the project. If the agencies have convinced themselves that they must finish scoping within 60 days, then they will have a good reason not to conduct scoping sessions along the rail route. In 60 days, it's hard to see how they can provide fair access to communities along the entire "impactshed" (I'm pretty sure that's not a word, but then, maybe "watershed" wasn't a word until somebody made it one).

    And not only is the geographic scope immense, but North America's largest coal terminal will have impacts in every conceivable category, from climate change to noise to wetlands to marine impacts to health. For the lead agencies to get coherent, scientifically-based input from other agencies with expertise, much less from the public, within 60 days will be a stretch.

    The second reason is the fundamental importance of scoping under NEPA. David has more experience with SEPA than I do, but under NEPA, responses to the scoping statement provide a foundation for the future consideration of many key issues, including alternatives to the proposed action and the project's purpose and need.

    The agencies have steadfastly refused to provide any information on the "scope" of the project. They haven't published the rail route, to the best of my knowledge. Scoping is a critical juncture for agencies' consideration of reasonable alternatives. For an agency to have to consider a particular alternative, comments have to provide evidence that the alternative is reasonable and feasible. Without knowledge of key aspects of the project until the scoping notice has been released, developing alternatives to the project and the evidence to support the alternatives will take time.

    THe proposed definition of the project's "purpose and need" will also first be presented to the public in the scoping notice. The "purpose and need" is a critical component of the NEPA analysis because it guides both the selection of alternatives and the agency's ultimate decision about the project.

    As anyone knows who has ever done a business or policy analysis, how you define your objective determines every other step along the way. The purpose and need statement will define the objective of the Gateway Pacific terminal. The project applicant will want the purpose and need statement to be as narrow as possible, because if it precisely mirrors the goals and features of the project, the project will be the only feasible outcome. The agencies have only spoken to the project applicant; they haven't spoken to us. We might want to point out that NEPA is supposed to look at broader purposes, not just the applicant's wants, needs, and goals.

    Responding to these and other key issues will be important, will take time, organization, and effort, and will be difficult to accomplish in 60 days. As I mentioned above, look how long it has taken the agencies and the applicant to compile sufficient information and evidence to proceed.

    So I think that an extra 60 days is not unreasonable under these circumstances. Let's not forget that this is a really big project. We tend to think of ourselves as little ol' Whatcom County, hidden away up in the top left corner of the country, and of Cherry Point as somewhere out in the hinterlands. But this is not a Whatcom County-scale project. It is a big project in global terms, with global impacts.

    The fact that the agency personnel involved in the environmental review process have never worked on a big project is not a good reason to treat this project as if it were a standard, little project. It isn't, and it deserves more scrutiny than any project Whatcom County has ever seen before.

    Hmmm, that isn't saying much.

    It deserves environmental review that meets the highest standards ANYWHERE. Anywhere on earth. And we're not going to get it if we don't ask for it.

    1. So shouldn't we start the discussion now of how we change the discussion re the "purpose"?

    2. We can be prepared to say what we think the purpose and need ought to be, but it's to make specific comments before we see the "purpose and need" statement. The applicant has prepared a purpose and need statement, but we haven't seen the agencies' take on it yet.

  7. As you mentioned, the agency personnel who are involved in the review process have never worked on anything like this, why are we not seeing more experienced people dealing with this project?

    I would also like to know why the state is not holding SSA to the same high environmental standards that they hold the oil companies to, the BAT and BAP standards. We know that there are both the technology and practices available to make sure that there is no coal in the air, in the water or on the ground at the terminal, itself. So, why is the state not demanding those standards of SSA?

    1. I think it's possible to set a standard that says "no coal anywhere." The problem is that experience to date, from around the world, shows that meeting a "no coal dust" standard is not possible. I hope that the agencies will hold the project to the highest standards. And, even more important, agencies need to require proof (not promises, not claims based on unproven technology) that these standards can be met before they approve the project.

  8. Hi Jean, I noticed on the County's GPT correspondence page that there are letters of concern about the EIS scope from King County, and Spokane sent to all agencies. Do you think they will be notified that they will need to resubmit their letters to be included in the decision making?

    1. Don't know. Don't know why the agencies don't just incorporate comments received to date into the scoping record. Who's going to complain about more, rather than less, public process?

      Oh, that's right. The applicant.

    2. What if someone were to send a comment requesting that the concerns identified in letters from King County and Spokane be addressed in the scoping?

    3. That's a good idea, Phil -- especially if the letters are attached. It's better to hear the concerns directly from the horses' mouths, with the horses' signatures, but at least the information would be in the record.