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Coal Train, Part 3: Who gets to greenlight Bellingham's giant coal port?

Eight politicians, a few agency heads and an Army general will all weigh in, but the buck stops with one man.
Coal at a Canadian terminal awaiting shipment.

Coal at a Canadian terminal awaiting shipment. Courtesy of Paul K. Anderson/Chuckanut Conservancy

This is the last of a three-part series on the Gateway Pacific Terminal.

2015. That's the earliest we'll find out if Seattle-based SSA Marine gets to build a giant coal terminal at Cherry Point north of Bellingham, the planned launch pad for shipping some 48 million tons of coal annually to Asian power plants and factories.

The stakes are high on all sides. Approval means billions of dollars for the port’s operator (SSA Marine), supplier (Peabody Coal) and shipper (Burlington Northern Santa Fe Railway). It also means that citizens and municipalities near the terminal and along the shipping route will likely face health and livability issues, and the financial challenge associated with accommodating a boom in rail and ship traffic.

In this final installment of our three-part series on the Gateway Pacific process, we’ll look at who will make the final decision to build, or not to build Gateway.

Ultimately, eight elected officials, an Army general and several agency heads hold the fate of the Gateway Pacific Terminal. Their decisions may also affect other proposed export terminals in the region. The three lead agencies—Whatcom County, Washington Department of Ecology and U.S. Army Corps of Engineers—are already heavily involved in determining the scope of environmental review. When they set that scope, in perhaps two months time, specialists will take over the process. The Environmental Impact Statement (EIS) they produce, described earlier in this series, will trigger key decisions.

The first will come from the Whatcom County Council when it votes on two critical permits: a Shoreline Permit and a Substantial Development Permit. Permit applications were filed in March 2012 by a subsidiary of SSA Marine. Another permit, smaller in scope, would allow BNSF to build a short spur line to supply the Gateway terminal.

It’s nearly impossible to predict the outcome of the Whatcom County Council vote. By the time Gateway gets on the council’s agenda, all seven current members may be gone. Four are up for election in 2013; three in 2015. Those elections stand to produce intense political maneuvering and heightened public interest in the small Northwest Washington county. Councilmembers are elected on a bipartisan basis; annual salary is $23,493. The Council frequently divides on issues relating to growth, zoning and economic development, with Bellingham’s liberal base facing off against rural conservatives. In 2011, one council race was decided (in favor of the conservative candidate) by a mere 468 votes. SSA Marine has been canvassing the county for months, stressing the terminal’s jobs and tax benefits and pledging to be environmentally responsible. Terminal opponents have been busy building their own base.

Whatcom County’s decision-making process is complex, but a key role will be played by an appointed independent hearings examiner, who is hired on an annual contract. The position is currently held by Michael Bobbink.

The examiner is an intermediary between county's planning staff and the County Council. Bobbink will hold a public hearing on the options that emerge from the EIS process and send his recommendation to the Council. The Council can then refer his recommendation to the county's citizen Planning Commission for its recommendation, hold its own public hearings or make a final decision based on Bobbink's recommendation alone.

Any decision may be subject to appeal. If a Shoreline Permit is approved, for example, it may be appealed to the state’s Shoreline Hearings Board. There's no way to estimate how long the county process will take, but it threatens to overwhelm a small staff with limited experience in mega-projects like Gateway.

And Whatcom County approval is just a first step. Several state and federal agencies must also approve permits in their jurisdictions. The key deciders at this level are the Washington Department of Ecology and the U.S. Army Corps of Engineers. These agencies have already partnered with Whatcom County to conduct scoping meetings like the December 13th gathering in Seattle. They also oversee the work of the consultants who will handle the environmental studies.


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Comments:

Posted Thu, Jan 24, 10:17 a.m. Inappropriate

And then there are the Courts. Federal and State.

Corps of Engineer decisions would likely be challenged in the Federal District Court, with appeals to the Ninth Circuit Court of Appeals.
State decisions would begin at the Superior Court --- proceeding to the Court of Appeals and the State Supreme Court.

In the end, the Judges decide. In the meantime, lawyers battle, interest groups sell memberships based on their efforts pro and con, and news organizations have "film at 11" and reams of copy to write and sell.

The likelihood that Gateway will ever be built is slim and none.

But all is not lost. The "economic development" to stop the project - in terms of dollars spent and employee hours committed - is not inconsequential.

The coal? It will find its way to a market, if not now then later.

Posted Thu, Jan 24, 10:10 p.m. Inappropriate

The description of the review process is a bit vague. The county's hearing examiner holds a hearing and makes a decision on the shoreline permit applications, not a recommendation. This decision can be appealed on the record to the county council, which can reverse if it finds a legal error. On the other hand, the (inevitable) appeal before the Shorelines Hearings Board is de novo, which means that an entirely new evidential hearing is held. The SHB hearing is likely the most important single event in the process. It is where the state agencies get to weigh in and where the essential evidential record is made. The SHB decision can be appealed on the record to superior court, then to the state court of appeals and finally to the supreme court. All of this can take many years to play out. Inlee's effect will be seen primarily in the posture that the Department of Ecology takes before the SHB and in his appointments to the Board itself.

woofer

Posted Fri, Jan 25, 8:21 a.m. Inappropriate

"He is talking with legal advisors to see if a study of climate change impacts can also fall within the purview of the Gateway EIS."

Whether the project's impact on climate change will be considered is crucial to making an informed decision.

nwcitizen

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