Different agencies, different laws and lots of science and partisan passion will collide before we know the fate of Gateway Pacific.
This is the second in a three-part series.
When President Richard Nixon signed the National Environmental Policy Act (NEPA) into law in 1970 — a law sponsored by former Washington Sen. Henry (Scoop) Jackson — neither man could have imagined what a complex and controversial law they had created. For developers, NEPA became a swear word, for environmentalists a tool to be sharpened and wielded. States would go on to create their own State Environmental Policy Acts (SEPA), and Washington’s is now very much in the spotlight. Together, SEPA and NEPA will determine the fate of what could become the nation’s largest coal-export terminal.
That would be Gateway Pacific Terminal (GPT) north of Bellingham at Cherry Point on the Strait of Georgia. The project developer, SSA Marine of Seattle, plans a $664 million facility capable of handling up to 54 million tons a year of bulk commodities; 48 million of those tons will be coal. When SSA Marine applied for a permit to build the terminal in March 2012 it triggered a process that will play out for years, engage a complex web of public agencies and generate a compendium of scientific studies and permits and the almost inevitable legal challenges.
There is no telling at this early stage whether SSA Marine will be successful in its efforts to build a coal terminal at Cherry Point. Part Two of our Coal Train series will attempt to lay out the arduous process that is already underway as we move, slowly, towards a final decision.
During four months of public meetings that ended this week, the terminal's opponents told three public agencies what issues they believe should be studied in environmental reviews of the terminal project under NEPA and SEPA. The public meetings, which closed Tuesday, are part of a process called “scoping.” The scoping phase is the first of two opportunities for the public to influence the Environmental Impact Statement (EIS) that will ultimately go to decision-makers.
Eight thousand people attended seven scoping sessions. About 750 of them spoke. Others signed comment sheets. An online scoping site collected over 10,000 comments. It was the biggest turnout of its kind in Northwest history. This part of the process inevitably skews towards the opposition. It’s designed to let people express their concerns, not to conduct a poll on the terminal’s popular support.
Moving forward, the key agencies — Whatcom County (where the terminal is proposed), Washington Department of Ecology and the U.S. Army Corps of Engineers — now must review the scoping comments and determine what the EIS should include. This part of the process is being managed by the regional engineering firm CH2M Hill, which was awarded the contract after competitive bids. The joint agency team, working with CH2M Hill, will take at least two months to agree on the scope of the environmental review.
Every part of the process is taking longer than originally expected because the public concern over the terminal — and its major commodity, coal — has been overwhelming. The past four months have been dominated by public feedback, but the process now will be driven by specialists in everything from marine biology to air quality, economics to transportation.
This specialist phase, if you will, is complicated by the fact that the agencies involved operate under different laws; NEPA for the Corps, SEPA for Whatcom County and the state's Department of Ecology. Despite their different jurisdictions, the agencies are working toward a single EIS statement. The Corps’ Patricia Graeser channeled A. A. Milne to explain: “The single EIS provided by the contractor would include the potential impacts each of the lead entities is required to document. For example, if Agency A isn't required/authorized under the laws and regulations governing it to document impacts to heffelumps, but agency B makes a determination that it is required to do so, then impacts to heffelumps would be in the EIS in order to meet the need of that entity. How exactly that type of information would be put forward in the document would be discussed among the agencies.”
As part of the Gateway evaluation, the Corps has the authority to assess the impact of similar proposals in the region. Of particular interest is the Millennium Bulk Terminals project on the Columbia River at Longview, similar in size to the Cherry Point project. The Corps plans to begin a separate scoping process for Millennium in a few months. They will wait for those findings before deciding if an area-wide review should be part of the Gateway evaluation.
Millennium probably won't generate the kind of statewide scoping meetings that were held for Gateway; by now, the agencies of record are well aware of the regional issues that citizens want examined. Which means that the Millennium scoping should proceed at a faster and more-localized pace, although some of those who testified at the Gateway Pacific scoping meetings may appear in Longview.
Millennium will also be reviewed by a joint-agency team, with Cowlitz County taking the place of Whatcom County. Although the sites are quite different, both projects involve a large body of water, about 18 coal trains daily and a thousand big ships a year.
Once the cooperating agencies agree on the scope of the EIS, the Gateway process will move behind closed doors for at least a year while CH2M Hill and its subcontractors study the issues within the scope. During this phase, project developer SSA Marine will interact directly with the review teams. A Draft EIS could be available by late 2015.
The publication of the Draft EIS, essentially a massive set of studies in the fields that emerged from the scoping process, will trigger another round of public hearings. Unlike the public "scoping" meetings, these hearings will focus solely on the Draft EIS. Agencies with knowledge and jurisdiction, as well as interested citizens and groups will have the opportunity to comment on the quality of the evidence, the range of alternatives and the evaluation of impacts and mitigation measures. By law, every written comment must receive a response. Lawyers, subject matter experts and citizens on both sides of the terminal issue will attack the document, hoping to have it amended. When all the dust has cleared, officials from the three key agencies (Whatcom County, Ecology and the Army Corps) will then prepare the Final EIS, submit it to the decision-makers and then wait — likely, for months.
The deciders have several options: They can reject the project as submitted, approve it or approve it with conditions. Historically, projects the size of Gateway are seldom approved without conditions. The project's viability depends on the nature and extent of any conditions. Either side, or both sides have the right to appeal the decision in court.
Critical in the entire EIS process is defining the geographic and topical boundaries of the review. For example, opponents want to broaden the geographic scope by demanding a study of the rail impacts from the Powder River Basin coal fields to Cherry Point, a distance of 1,000 miles.
As for topical expansion, since climate change has returned to the world agenda and since coal is a major contributor to climate change, including Gateway's impacts on this phenomenon in the EIS could have global implications.
In like manner, the breadth of scientific studies widens if environmental reviews expand beyond Gateway Pacific’s thousand-acre site at Cherry Point. The impact of more shipping on whale migrations and the dangers of collisions or spills in the San Juan Islands are just a few of the issues opponents have raised. Onshore, opponents point to BNSF’s massive coal trains all along the shipping route, demanding health studies about the impact of diesel emissions, coal dust and safety.
SSA Marine, its partners and supporters would prefer that the EIS stay limited to the site itself. The group opposes linking GPT to other coal port proposals in the region, such as Millennium. BNSF is sure to make the point that interstate commerce is governed by federal law and a federal agency with wide jurisdiction over railroads.
The multi-year process to determine whether and how the Gateway Pacific Terminal gets built will be fraught with all kinds of legal, logistical, political and environmental intrigue and peril. But in the end, we will have a decision.
In Part Three of this series, coming tomorrow, we examine the critical question: Who Decides.