Tuesday, June 28, 2011

Coal Politics Comes to Washington and Wonky Process and Diplomacy (update)

Update: I may have overstated the applicability of appearance of fairness so I made a few changes to the post as noted via underlined text or strikeout. I suspect that there is more to this than what I have received by one attorney so far. 

Coal politics has come to Washington State, particularly in northwest Washington in Whatcom County and southwest Washington in the Longview area. Coal has been a powerful force in U.S. regional politics for a long time. In Washington State Coal mining has taken place in a number of areas including Bellingham, east King County, Cle Ellum and Centralia. Most of these mines closed many years ago. The last mine in Bellingham closed in the mid 1950s. Centralia was the only area with a significant open pit coal mine and that mine continues to operate. Centralia also has a coal fired electric power plant, but that plant is slated to close in a few years.

With coal being a fairly minor presence in Washington State combined with plentiful hydro power, coal politics has been a minor issue in Washington politics. But the proposed coal terminals first in Longview and now in Whatcom County have brought coal politics to Whatcom County and Cowlitz County and the State of Washington.

I previously posted on this issue: coal-terminals-in-washington-state, coal-terminal-preemptive-strike, and cherry-point-coal-terminal-update. There has been plenty of excellent reporting in Whatcom County on the issue by Bellingham Herald reporters John Stark and Jared Paben both in the paper addition as well as on line with an article last week on Whatcom County's decision to require the coal terminal project proponents to file a new shoreline major development permit and new major development permit whatcom-county-gateway-pacific-terminal-story-with-ssa-attorney-comments,  read-the-letters-in-the-county-decision-on-the-gateway-pacific-terminal-shorelines-permit/, and a compilation of State of Washington communications regarding the project a-peek-behind-the-scenes-as-state-agencies-review-gateway-pacific.

With local elections taking place this summer and fall, coal politics has come to Whatcom County. But it is a tricky thing for those running for office.

County Council:

For candidates for county council this issue is politically very tricky. Ultimately the Council will vote on final approval of the project via the rules for major development projects if it comes to them for approval. Hence, they are faced with an appearance of fairness issue. They really are very much like a jury and their decision is to be based on the record before them and how that record meets County Codes and the environmental impact statement. Hence, Council members have to refrain from speaking their true feelings about the issue. However, based on RCW 42.36.040 candidates are not in violation of appearance of fairness including "Prior to declaring as a candidate for public office or while campaigning for public office as defined by *RCW 42.17.020 (5) and (25) no public discussion or expression of an opinion by a person subsequently elected to a public office, on any pending or proposed quasi-judicial actions, shall be a violation of the appearance of fairness doctrine". So despite the appearance issue, council candidates and for that matter executive candidates may speak their mind.   Difficult for the Council candidates and frustrating for the public that may really, really, really want to know candidate views and really, really, really want to influence the council candidates.  However, another section, RCW 42.36.100 states "Nothing in this chapter prohibits the restriction or elimination of the appearance of fairness doctrine by the appellate courts. Nothing in this chapter may be construed to expand the appearance of fairness doctrine". And RCW 42.36.110 states "Nothing in this chapter prohibits challenges to local land use decisions where actual violations of an individual's right to a fair hearing can be demonstrated". A question for attorneys that is outside my knowledge. 

One sitting Whatcom County Council member likely already got sideways with this issue when he brought forward a resolution in favor of the coal terminal project. He was apparently ignorant of the appearance of fairness doctrine. Whoops.
What follows is a summary of the process county council members face. For some council members projects like this can be a truly awful situation, particularly if they oppose the project. The County administration will do the review of the project application and will then prepare a report for the Hearing Examiner. The purpose of the Hearing Examiner process which includes a public hearing is to make sure that the application meets the criteria of the County Code. The way to look at it is that the Hearing Examiner makes sure that the County planners properly followed the code and interpreted the application correctly. The hearing examiner acts as a judge of the law and the application for the project meeting the criteria set forth in County codes.

Once the application gets through the Hearing Examiner process it is forwarded to the County Council and  the Council has three choices:

1) Make a final decision on the application based on the Hearing Examiner recommendation with such modifications that the council deems appropriate. The Council is very constrained on what is appropriate)

2) Send the application to the Planning Commission for additional hearing and a recommendation before making a decision  as in number 1 above.

3) Set their own public hearing before making making a decision as in number 1 above.

Any significant modifications outside the legal parameters are not allowed and if they take place are readily challenged in a court appeal. And this is where it is an awful situation for some council members.  If the project meets the criteria to be granted a permit the council really can not alter the permit or deny the permit even if they do not like the rules they very well had nothing to do with setting as the rules governing the project were set some time ago.

What are the rules, from Whatcom County Code 20.88.130:

 The major project permit shall be issued by the county council when the applicant has established that the proposed major development:
(1) Will comply with the development standards and performance standards of the zone in which the proposed major development will be located; provided where a proposed major development has obtained a variance from the development and performance standards, standards as varied shall be applied to that project for the purposes of this act.
(2) Where the project is conditionally permitted in the zone in which it is located, the project must satisfy the standards for the issuance of a conditional use permit for the zone in which the project is located.
(3) Will be consistent with applicable laws and regulations.
(4) Will not substantially interfere with the operation of existing uses.
(5) Will be served by, or will be provided with essential utilities, facilities and services necessary to its operation, such as roads, drainage facilities, electricity, water supply, sewage disposal facilities, and police and fire protection. Standards for such utilities, facilities and services shall be those currently accepted by the state of Washington, Whatcom County, or the appropriate agency or division thereof.
(6) Will not impose uncompensated requirements for public expenditures for additional utilities, facilities and services, and will not impose uncompensated costs on other property owned.
(7) Will be appropriately responsive to any EIS prepared for the project.

It is possible that a clever council member may be able to get the majority to make a substantial change counter to the Hearing Examiner's recommendation, but it has been my experience that it is rare unless the Hearing Examiner made a decision that the staff opposed in which case the staff will have an alternative presentation to the council. I was once on a panel that altered the final draft of the EIS in order to better support our position as the original EIS drafters did not share our interpretation of a significant impact on a couple of issues. But in that case we had control of the EIS. In this case the Council is not in charge of the EIS. Hence, Council members would have to be able to clearly demonstrate with supportable findings found in the record flaws or failures in mitigation.

Which brings up the other election to county government.

County Executive:

Of all the positions that are important in regards to major development projects, the County Executive is far the most important. But again the Executive candidates can't not show favoritism. They must demonstrate that they would oversee the review of the project in a fair manner. For big projects like this one there are numerous administrative decisions where discretion can be applied. One area of discretion is the scope of the Environmental Impact Statement (EIS) and the oversite evaluating the impacts and mitigation. The scope of the EIS may be established before the election is over, but that scope and candidate views on the scope will be a good way to judge the candidates on this issue. And again this position is much more important than the council.

Mayor of Bellingham:

A friend pointed out that the next mayor of Bellingham might be determined by an issue that the mayor has no authority on. As the position has no legal role, mayor candidates and for that matter city council candidates can pretty much say whatever they want.

Though the mayor may have no authority on this project, the mayor may be able to influence those that do have some authority. One mayor candidate, Dan Pike, has already come out strongly opposed to the terminal project after initially being tentatively supportive bellingham-mayor-region-needs-jobs. The other leading contender, Kelli Linville, has also come out opposed to coal.

With no authority, it would appear on the surface not to matter what the mayor's position is. However, the mayor is a political leader and may be able to have influence on County leaders. The question may then come down to diplomacy. What is the best approach for influencing the legally binding process the county must follow? The current mayor up for reelection sent a letter to the Governor asking the state to take the lead on the EIS. The State has no authority to take the lead unless the County requests the state to do so. The letter further argued that the State is much better equipped to handle the EIS. The County response to this letter was to send a letter to the Governor outraged at the mayor's letter. Now imagine being in the Governor's office and getting two letters from the same area of the state basically pissing on each other (for a lack of a better term). Yikes.

And regardless of this diplomatic kerfuffle, Is it better to have local control of the EIS or state control of the EIS? Did this letter make any friends with the very people you may want as your friends (the County) if you oppose the project?

City Council:

Like the mayor, city council members have no authority on this issue and can say pretty much whatever they may want. The current City Council sent a letter to the County simply asking that a broad range of impacts including traffic impacts and train impacts along the rail route be considered as part of the review of this project. I suspect the Council being a process oriented body has a good grasp of the process and has behaved in a diplomatic manner. No toe stomping with a respectful letter of request to the county.

It is an election season; and style and process and making a difference on the landscape may not matter nearly as much as Coal Politics.

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