Coal Port Speech Ban: We Can All Just Get Along

There’s a little bit of an uproar going on in the Bellingham Herald Politics blog.  It seems that some folks don't like being told what they can say during County Council "open sessions." 

The blog posted a pronouncement read into the record before Tuesday night’s Whatcom County Council meeting.  This pronouncement is SO IMPORTANT THAT IT MUST BE READ IN ALL-CAPS!  So don't blame me.For those who don't like to read all caps, the PRONOUNCEMENT says that no comments about the Gateway Pacific terminal will be allowed during open session. 

Here it is, as reprinted in the Herald.  I hope that Council Chair Kershner read it in an appropriately stern voice:

THE COUNCIL HAS RECEIVED A WRITTEN LEGAL OPINION FROM THE WHATCOM COUNTY PROSECUTOR’S OFFICE CLARIFYING FOR US THE QUESTION OF WHETHER OR NOT WE SHOULD RECEIVE PUBLIC COMMENT ON THE PROPOSED GATEWAY PACIFIC TERMINAL PROJECT DURING “OPEN SESSION”. WE HAVE BEEN ADVISED THAT SUCH COMMENT SHOULD NOT BE ALLOWED AT THIS TIME. 

THE PROSECUTOR’S OFFICE ADVISES THAT THE BASIC PRINCIPLE OF A FAIR HEARING PROCESS IS THAT DECISIONS ARE MADE ENTIRELY ON THE BASIS OF THE EVIDENCE CONTAINED IN THE RECORD AT THE TIME OF THE PROCEEDINGS. BECAUSE OF THIS, THE APPEARANCE OF FAIRNESS DOCTRINE, AS CODIFIED BY CHAPTER 42.36 RCW, PROHIBITS EX PARTE COMMUNICATIONS. AN EX PARTE COMMUNICATION IS A ONE-SIDED COMMUNICATION BETWEEN A DECISION-MAKER AND THE PROPONENT OR OPPONENT OF A PARTICULAR PROPOSAL WHICH TAKES PLACE OUTSIDE OF THE FORMAL HEARING PROCESS ON A QUASI-JUDICIAL MATTER. OUR PROSECUTOR’S OFFICE BELIEVES THAT COMMENTS DURING OPEN SESSION, OUTSIDE OF THE FORMAL HEARING PROCESS, ARE EX PARTE COMMUNICATIONS. IT SHOULD BE EMPHASIZED THAT THE STATUTE DOES ALLOW FOR THE SUBMISSION OF WRITTEN COMMENTS, PROVIDED THEY ARE MADE A PART OF THE RECORD.

Some rude people made fun of this pronouncement.  Oh, all right, I was one of them.  Here’s the blog link.

But before we get all Europeany and revolting, let's take a step back and think about this.  Can’t we all just get along?  Why, sure we can.

Note that the PRONOUNCEMENT only applies to the Gateway Pacific project.  Nobody’s stopping anybody from educating the Council about coal terminals in general.

For example:  One might say “If a 48-million ton coal terminal were built on the west coast, it would require 487 of the world’s largest bulk carriers to transport all that coal across the sea to China.  Did you know that those carriers burn the dirtiest fuel on earth?”

No ex parte contact there!

Or, one might talk about Large Facilities.  As in, “when bulk materials such as coal are transported by train to Large Facilities, the diesel particulate emissions are so significant that a health risk assessment should be performed.”

Another non-ex parte contact!

It’s easy. And we can all play.

Coal Trains: Good News, Bad News

Picture courtesy of Communitywise.  Hope they don't mind.

1.  Cumulative Impacts:  Nicely Done, Department of Ecology

Yesterday, the Washington Department of Ecology sent a letter to the U.S. Army Corps of Engineers, requesting an evaluation of the cumulative effects of proposals to build west coast coal terminals.  The letter relates to a proposed terminal in Port Morrow, Oregon. 

Port Morrow would be just a wee mite of a terminal, compared to Gateway Pacific:  a mere 8.8 million tonne facility, or less than 1/5 the size of Gateway Pacific at buildout.  But add a little coal port here, a bigger coal port there and you have – a whole lot of environmental impacts. As Ecology notes in its comments. 

Here’s a link to the analysis that supported Ecology’s letter.  I do like me a good legal analysis, and Ecology provides a clear, succinct summary of relevant case law on cumulative impacts.

You’ll notice that there’s none of the foolishness that you’ve heard from Gateway Pacific supporters, claiming that there’s no need to look at impacts outside of the terminal site.  What Ecology is saying here is that, when the environmental impact statement evaluates the impacts of transporting coal to and away from the terminal, it should look at the impacts that will occur if all of these terminal projects are approved.

All of the rail traffic. All of the air pollution.  All of the greenhouse gas emissions.  From all of the terminals. 

Every terminal goes through an individual permit process, but the environment doesn’t respond to permit processes.  Environmental quality (or lack thereof) results from all of the “disturbances” that we throw at it.  “Disturbances,” a term used in the report, means pollution.  Changes.  Anything above the status quo.

For those who just want to cut to the chase, the main points are:

There are permit applications pending for three other coal export facilities in the Pacific Northwest. SSA Marine has submitted an application for a coal export facility in Whatcom County, Washington at Cherry Point, with annual export of 48 million tons at full build-out. Millennium Bulk Logistics (a subsidiary of Ambre Energy, like Coyote Island Terminals) has submitted an application for a coal export facility in Longview, Washington with annual export capacity of 44 million tons at full build-out. A dredging permit at Coos Bay, Oregon is currently under appeal, with expectations that the dredging will accommodate a coal export facility with approximate annual export capacity of 10 million tons. All of these facilities would entail transport of coal by train from the Powder River Basin to their Oregon and Washington locations, followed by shipment overseas to Asian markets. There are also two other permit applications expected at two separate sites at the Port of St. Helens, Oregon and Hoquiam, Washington.

. . .  In the important cumulative impacts case of Kleppe v. Sierra Club, 427 U.S. 390(1976), the Supreme Court stated: “[W]hen several proposals for coal-related actions that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together.”. . .

[T]here will be eleven coal trains traveling weekly to the Port of Morrow at full build-out. Ecology assumes that the trains will be making round trips. Thus, it appears that this proposal would result in 22 additional train trips to and from the proposed facility, or slightly over 3 trips per day. We understand that the trains will travel on BNSF tracks from the Powder River Basin, traveling through Spokane, and then continuing southwest through Washington until crossing the border in the south to Oregon.

The trains associated with at least two of the other proposed facilities are expected to travel this same route in Washington. Those proposals at full build-out could result in approximately 18 daily trips (Gateway) [hey, THAT’S US!] and 16 daily trips (Millennium Bulk). Thus, a minimum of 37 coal trains might daily transit the same route. The rail traffic from some of the other proposals may also travel the same route, further adding to the potential for environmental impacts of increased traffic.

. . .[R]ail capacity is constrained along much of the BNSF route from Sandpoint to Oregon . .  Spokane [is] a “choke point” in the rail system. Rail capacity issues are an important challenge for this proposed project, especially when considered cumulatively with the other proposals.

The increase in coal train traffic also presents the potential for other environmental impacts of concern. For example, coal dust is known to be emitted from uncovered coal cars during transit. The length and number of trains could result in longer wait times at at-grade crossings for emergency personnel and members of the traveling public. Increased trains could result in noise impacts and increased air emissions, including diesel particulate emissions. The potential for these and other types of impacts have not gone unnoticed by communities located along this corridor. Many are expressing strong concerns about the potential for significant environmental impacts that could occur from the cumulative impacts of these proposals. These communities’ concerns and these potential impacts should be considered in an EIS for the proposal.

Yeah! 

2.  Speaking of “Rail Capacity Issues”. . .

Not so good for our little corner of the world: BNSF’s potential approaches to increasing rail capacity are coming to light.  In a new Crosscut article (the link is here), Floyd McKay discusses the massive increase in rail capacity that would be needed to accommodate the coal trains to Cherry Point.  He notes:

BNSF told city officials last week that three tracks might be needed through at least part of the waterfront. The third track might be only a short siding, or it could be part of a plan to add track capacity along a much longer segment.

The South Bellingham siding, WSDOT documents reveal, would close several busy crossings and eliminate vehicular access to the popular Boulevard Park and Taylor Dock. . .

The Crosscut article refers to a study recently published by Communitywise Bellingham, entitled  Gateway Pacific Terminal Train Impacts on the Bellingham Waterfront. Read it and weep.