Tuesday, October 23, 2012

Coal Terminal Scoping Meeting on Saturday, October 27th

In case anybody has missed the calls to attend the “scoping” meeting to be held on Saturday for the proposed Gateway Pacific coal export terminal at Cherry Point--

There’s a scoping session for the proposed Gateway Pacific coal terminal on Saturday at Squalicum High School, at 3773 East McLeod Road in Bellingham. The doors open at 11:00.

Let me say, up front, that I'm feeling sorry for everybody.

I’m sorry for the organizers, who apparently viewed this as just another scoping session for just another private project.  They scheduled a venue for a single day – actually, half of one day (four hours, 11:00-3:00), as if there weren’t going to be thousands of people, literally, who want the chance to make their case. 

Maybe this would have made sense if the purpose of the scoping session were solely to allow the public to submit scoping comments.

Well, frankly, that’s the purpose of the internet. 

At its root, the issue is this:  this is no typical private project. It’s not a project that will only have direct effects on a few people.  Most important, it’s not an issue about which only a few people will be in a position to offer comments, mostly technical in nature, about its environmental impacts.

The public wants to be heard, to hear each other, to be seen to exist, and this is the chance.  There won’t be another chance until the agencies are on the verge of making their decisions. 

It’s not irrational for the public to want to be seen and heard – not when you have engaged citizens on both sides. And that’s what the agencies apparently failed to take into account.

And so, I feel sorry for the folks who will be opening the doors at 11:00 a.m.  If I’m not mistaken, there will be a whole bunch of people waiting to get in.  Let’s hope that they haven’t been waiting in the rain – or snow (it’s not winter yet, is it?).

I feel sorry for the folks who are standing in line if it rains.  I hope that they (we) all get to be heard.  If not, I feel sorry for them.  Us.

And finally, I feel sorry for these folks, who are the ONLY citizens in Whatcom County who are banned from this event. 

2012 Whatcom County Council

Why have these nice people been banned?
Because, as members of the Whatcom County Council, they’re the people who have the greatest need to be informed.

No, it doesn’t make sense.  It all goes back to the County’s stance on “Appearance of Fairness.” The County's interpretation has ensured that our County decision makers are isolated from citizens and (officially, at least) kept in the dark on the most important issue to hit this County – well, ever.

For those who haven’t been following this saga, the County has decreed that County Council members aren’t supposed to read or hear anything about the Gateway Pacific coal terminal.  In one particularly ludicrous statement, the Council was informed that it shouldn’t even read anything about the coal industry. 

The Appearance of Fairness law limits the Council’s knowledge of the project to the “record” for the permits to be approved.  So why doesn’t Whatcom County take the bold step of declaring:  “All information that’s in the public record will also be placed into the record of the permits.  Council, inform yourselves.” 

What would be the worst that could happen?  The project applicant could tie itself up in knots, trying to show that allowing County Council members to review public documents somehow violates its rights.  (Even if it won, which it wouldn’t, what would happen? The whole County Council would be disqualified?  Not the way the law works.  If everybody is in a position to be disqualified, the law says that everybody gets to vote under the "rule of necessity" in RCW 42.36.090. )
As it is, the Council is required to be willfully ignorant until it reviews the Gateway Pacific Terminal project permits, when it will have 21 days – that’s three whole weeks – to read the record of the past several years, absorb the technical reports and citizen input, and make a decision.

Ridiculous.  Nonsensical.  It’s enough to make you feel sorry for them. 

Or for us, for being represented by the most ignorant people in Whatcom County.


  1. I too feel bad for the Council. It is my opinion that they have not been well advised. Since they have the final review, they ought to own the process and that means establishing just what the scope of the EIS will cover. Furthermore, while technical comments matter so does and overall sense of the public’s view no matter how rough and inarticulate that might be.
    I have been through two very difficult EIS processes as a policy maker (one on as a member of a State panel and another as a member of a citizen advisory committee). In both cases the panel and citizen advisory committee took ownership of the process. We decided (or in the case of the advisory committee advised) what the scope would be, what alternatives were reviewed and even the level of detail in the EIS. We also found that the scoping hearing was very important to attend as well as the draft EIS hearings. It greatly informed our decision. During hearings, there may have been a general lack of technical merit to many comments, but those comments still were informative in that they provided a view of where the public that cared to comment was in regards to the two projects.

  2. I agree the advice given the Council was not particularly good. But it is also almost certainly the case that were the Council to participate in any way a plethora of lawsuits from both sides would accompany any decision the Council might make.

    Jean had a good discussion on this site some time ago about the distinction between quasi-judicial, etc... Jean, would there be any good way to claim that since the site includes DNR lands (I terms of the off-shore), the land being addressed for the on-shore operation, and the rail spur, land that is off-site, that it would not be a single permit issue and, thus, would be open to the Council's being able to track discussion as well as have discussions with anyone they care to have discussions with?

    Are there other options? Clayton was wondering if the Council couldn't go ahead and hold a hearing to receive public input on what should be scoped for the EIS and then, as a Council, write a letter with, perhaps, a majority and minority report if needed.

    I don't know, just a thought.

  3. The first part of interpreting any law is to identify problems. The more important part -- the creative and constructive part -- is to solve problems.

    The County has correctly identified Appearance of Fairness as a potential problem. The more interesting and important question is: what is the real problem? Is the real problem a (small) chance of a technical violation of the Appearance of Fairness law, or is the real problem the prospect of uninformed Council members making decisions about permits for North America's largest coal terminal?

    I think that the real problem is ignorance, and I think that the County can solve that problem if it wants to.

    The purpose of Appearance of Fairness is to prevent backroom deals. It is intended to make sure that the information that decision makers consider is on the record, not hidden in the shadows of secret lobbying meetings. Is any real threat of unfairness posed by allowing Council members to look at the information posted on the County's web site? No. None.

    (And, if we allowed ourselves to be honest for a moment, do we even believe that Council members aren't reading the information that is available to every other member of the public? Short of posting a censor in every Council member's house and workplace, there's no way for ensure that they don't read the newspaper.)

    It would seem, then, that the County should be problem-solving to make sure that the County Council is well-informed. The law allows for this, in my opinion. And it seems to me that the consequences of ignorance are far more significant than the potential consequences of the chance that somebody may, might, could conceivably, bring a lawsuit on Appearance of Fairness grounds.

  4. Excellent points here!
    Due process easily trumps appearance of fairness, which is essentially unenforceable anyway.
    If a quasi-judicial approach is followed, only the established written record is allowed as a basis for decisions.
    Decision-makers are asked to declare whether they have engaged in activity which might influence their decision; whether they answer honestly is questionable at best. But, only if they have been observed in such activity. But, who can or would be observed reading what is widely available to all citizens?
    Council members are also citizens, and more important, they have been elected to represent citizens - all of them!

    In this case, the written record will be enormous and comprehensive, as will GPT impacts. It is unrealistic to expect anyone -including the County Council- to either ignore what is a major topic of public discussion, or absorb all the information generated in a mere three weeks before rendering a fair decision.

    The County Legal Dept is essentially using this tactic for COA purposes, without any consideration of practicality, fairness or wisdom. Actions by part-time Council members, as long as they are not egregiously and obviously stupid, are matters of personal judgement, interest and concern. Who really believes that Council members won't keep abreast of what is likely the most controversial and important issue they are likely to ever face?

    Why not send copies of comments directly to this Council? If their erstwhile legal staff want to censor them, make them do it! The position that legal recommends is a path of reduction to absurdity, and should be treated as such.