City council, state play games to avoid public vote on tunnel

Environmental law prohibits making final decisions until the impacts have been studied. But now the city council wants to get out of putting an initiative on the ballot, so it's trying to say the decision on a tunnel has already been made. Sorry, but you can't have it both ways.

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Seattle's downtown waterfront, with angled piers and a long-blighting Viaduct.

Environmental law prohibits making final decisions until the impacts have been studied. But now the city council wants to get out of putting an initiative on the ballot, so it's trying to say the decision on a tunnel has already been made. Sorry, but you can't have it both ways.

The city council and state have themselves in a pickle now. In their efforts to avoid putting the tunnel referendum on the ballot, these officials are suggesting that the tunnel decision was made long ago. Too late for a referendum, they say.

But, whoops. These same officials have been providing at least lip service to the state law that prohibits key decisions until environmental review is complete. Because environmental review isn’t done yet, it’s impossible for them to claim that the tunnel decision was made long ago. The city council and state are really caught in the wringer on this one.

The dilemma stems from the Seattle City Council’s (and the state’s) efforts to circumvent the requirements of the State Environmental Policy Act (SEPA). That law mandates a “look before you leap” approach to decision making. State and city agencies must prepare an environmental impact statement (EIS) before making major decisions. This key report analyzes impacts and evaluates alternatives. It is the touchstone to assure environmental issues are incorporated into major decisions.

The intent of the law is not to create big, fat reports to fill bookshelves (or jump drives). The law states time and again the purpose of preparing an EIS is to make sure that the information in the document is used when agencies make their decisions. “EISs shall serve as the means of assessing the environmental impact of proposed agency action, rather than justifying decisions already made,” according to the Washington Adminstrative Code (197-11-402).

The way most of the tunnel proponents talk, you would think the decision is already made — which means the EIS must be done, right? Wrong.

The state and the city are still working on the EIS for the viaduct replacement project. That EIS will analyze both the tunnel alternative and alternatives to the tunnel. Until the Final EIS is published, neither the state nor the city is allowed to make any decision that would predispose it toward the tunnel. Is that news to you? It might be given that so many politicians and bureaucrats want you to believe the tunnel is a done deal.

Up until now, the state and city council have used Orwellian word games to avoid true compliance with SEPA. The state and the council have made one decision after another to move forward with the tunnel. But in a nod to SEPA, they have — until now — always claimed that those decisions were not irrevocable.

But the threat of a referendum challenging the city council’s most recent actions has the council and the state in a bind. Recently, the council approved ordinances (Council Member Mike O’Brien dissenting) that would establish the terms for the city’s “cooperation” with getting the tunnel built. Petitions with 28,929 signatures (well beyond the 16,500 required to qualify) have been turned in for a referendum to challenge those ordinances.

The tunnel proponents want to keep the referendum off the ballot. How? They cite a law that says that a referendum is not authorized to challenge a ministerial or implementing decision. A referendum must be filed to challenge the original “green light/red light” decision.

So, in an effort to avoid placing the referendum on the ballot, the city council and its state agency supporters are now asserting that the decision to build the decision was made long ago. According to the state’s project manager quoted in The Seattle Times March 27 front page article, state officials “are not interested in revisiting the decision.” Huh? I thought the decision wasn’t made yet — and couldn’t legally be made until the EIS was done.

So, which is it, guys? Has the decision not been made yet (because to do so would violate the state law that mandates that the EIS be prepared first)? In that case, the council has to put the referendum on the ballot.

Or, are you going to continue with the line that the decision already was made and the referendum is too late — even if that means you admit to violating SEPA’s requirement to do the EIS before irrevocable decisions are made?

The city council and state can’t have it both ways. Either comply with SEPA and admit the recent decisions are ripe for a referendum or keep the referendum off the ballot and admit you are violating SEPA.

This isn’t the first time that Council Chair Richard Conlin and his followers have tripped all over themselves in trying to promote the tunnel. Just recently, Council Member Conlin highlighted fears of the viaduct pancaking in an earthquake as a reason to support the tunnel. Does Conlin not realize (or just conveniently ignores) that the viaduct will stay up three years longer if the tunnel is built than if the surface-transit option is chosen? Gosh, maybe if they waited for the EIS to come out this spring, they would get the answers and information on issues like these.

The writer represented a tunnel opponent in the initial filing of a 2009 suit related to the project.


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