August 2, 2013

Ecology Requires Unprecedented Global SEPA Analysis

Proposed Gateway Pacific Terminal in Whatcom County—Legal and Political Implications for Development and Trade in Washington State

By Dick Settle and Pat Schneider

On July 31, 2013, the Washington Department of Ecology (“Ecology”) announced the long-awaited decision by Ecology and Whatcom County, as co-lead agencies under the State Environmental Policy Act (“SEPA”), on the scope of the environmental impact statement (“EIS”) for the proposed Gateway Pacific Terminal (“GPT”), a multimodal marine terminal in the Cherry Point Industrial Urban Growth Area of Whatcom County (“County”) for the export of dry-bulk commodities.

Ecology’s scoping decision gives rise to a host of legal and policy issues that have implications for all businesses in Washington, particularly those that manufacture or transport goods.

The initially targeted commodity to be shipped from the proposed terminal is coal from the Powder River basin of Montana and Wyoming to Asian markets. Some citizen groups concerned about greenhouse gases generated by the combustion of coal oppose this or any other such marine terminal in the state. Other groups concerned about the depressed state and national economies support the project and the jobs it would create. The resulting controversy has attracted extensive media coverage.

Federal actions on the proposal are subject to the EIS requirement of the National Environmental Policy Act (“NEPA”). State and local actions are subject to the EIS requirement of SEPA. The U.S. Army Corps of Engineers (“Corps”) is the lead agency under NEPA, and Ecology and the County agreed to be co-lead agencies under SEPA. Although these agencies are interpreting and applying essentially identical language in SEPA and NEPA, and are preparing a “joint EIS,” they have made profoundly different scoping decisions. Ecology has defined the scope of the joint EIS much more broadly than either the Corps or the County. 

Ecology’s most striking expansions of the scope of the SEPA EIS, beyond the Corps NEPA EIS, will require:

  • SEPA analysis of global impacts of the transportation and ultimate use of coal and other commodities that pass through the terminal, while NEPA analysis required by the Corps is confined to the local impacts of the proposed project.
  • SEPA analysis of the global greenhouse gas emissions and climate change impacts of the combustion of coal in Asian or other destination markets, while no such NEPA analysis is required by the Corps.
  • SEPA statewide analysis of human health impacts while the Corps’ NEPA analysis will be confined to health impacts within “the immediate vicinity of the combined site/project corridor within the Cherry Point Industrial UGA.”
  • SEPA analysis of railroad transportation impacts, including a “detailed assessment” of railroad impacts on communities throughout the state, and “general analysis” of railroad impacts out-of-state, while the Corp’s NEPA analysis of railroad impacts will be confined to the project site and the rail spur serving the terminal.
  • SEPA analysis of “cargo-ship impacts”… “beyond Washington waters” while the Corps NEPA analysis will be limited to “vessel traffic” impacts in Washington waters.

Ecology’s decision on the scope of the SEPA portions of the joint EIS raises important legal and policy issues that include:

  • How can state and federal agencies interpret essentially identical language in NEPA and SEPA to reach such fundamentally different conclusions on the required scope of this EIS,
  • Since the Washington Court of Appeals has ruled that SEPA’s requirements are “inapplicable” and only NEPA’s requirements apply to a joint NEPA/SEPA EIS, how can SEPA require what NEPA does not?
  • As a practical matter, is a joint NEPA/SEPA EIS more confusing than useful when the scopes of NEPA and SEPA analysis are so fundamentally different?
  • It has taken 20 months for the agencies to issue their scoping notices, the draft EIS is predicted to take approximately two years, and preparation of the final EIS will take an unknown additional time. Only then will a multi-year permitting process for the terminal be able to commence, with appeals surely to follow. Are there legal or constitutional limits on the cost and delay that may be imposed upon project proponents by requiring SEPA analysis of global impacts, notably the combustion of coal in Asia, that will occur regardless of whether the proposed terminal is built?
  • What are the implications for appeals of such a joint EIS, when NEPA issues are appealable to federal court under a six-year statute of limitation, and when SEPA issues are appealable to state court within the time period for appealing the first state or local permitting decision (either 21 or 30 days)?
  • As a result of this unprecedented EIS scoping decision by Ecology, will SEPA EISs for proposed manufacturing facilities, transportation terminals, distribution centers, shopping centers, “big-box” retail stores and the like be required to analyze not just the local impacts of construction and operation, as has been the case until now, but also the statewide, national and global impacts of the transportation of goods and materials to and from such facilities and the ultimate use of the goods wherever that may occur?
  • To what extent are greenhouse gas emissions from a particular proposal even subject to SEPA review, let alone review on a global scale? Is it possible to do a meaningful analysis of global impacts from a single project? What useful information for local decision-makers can be obtained from such a global analysis?
  • If this unprecedented scoping decision by Ecology and the County is an example of state and local agencies’ broad discretion to implement SEPA as they see fit, is SEPA really a state law with consistent, reasonably predictable requirements or instead a charter for agencies to impose whatever requirements they wish?

For more detailed information on the federal and state scoping decisions and the progress of the EIS for the proposed Gateway Pacific Terminal, see:

  • Department of Ecology here
  • Whatcom County website here
  • Army Corps of Engineers here

If you have questions or comments on this Foster Pepper News Alert, contact Dick Settle or Pat Schneider.

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