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Whatcom Watch Online
Concerned Citizens Confront Big Coal


December 2012

Cover Story

Concerned Citizens Confront Big Coal

by Terry Wechsler

Terry Wechsler is a co-founder of Protect Whatcom and retired public interest attorney

Terry Wechsler

[Editor’s Note: The October/November issue contains articles about scoping, the history of GPT’s permit, and the issues the proposed coal terminal raises for the environment at Cherry Point.]

“Outside: A cheerful wet crowd; a daughter with her hand in her mom’s, yelling support for the family farm; a Lummi chief’s impassioned call to protect their spiritual home; thousands of people with red anything from hats to coats to gloves and ‘no coal’ tee shirts to show solidarity; lines that snaked around the building formed before 8 a.m. so speakers were assured a spot at the microphone; Whatcom County people from every demographic. And as the rain poured, no one left.”

That was the impression of Jayne Freudenberger, co-president of the League of Women Voters Bellingham/Whatcom County, of the scene outside Squalicum High School on Saturday, October 27th. She, along with nearly 1,800 other people, came to the first of seven “scoping meetings” conducted by agency co-leads for the Gateway Pacific Terminal Environmental Impact Statement (see sidebar on page 4 for locations of the other meetings).

What inspired that many people to stand in the rain and the cold for up to three hours for the chance to speak to an issue for two minutes or merely sit as witnesses? The answer is the possibility that the largest coal export terminal in North America could be built at Cherry Point. For some it was the knowledge that GPT is one of five terminals currently proposed in Oregon and Washington, and that the combined proposals could result in 155 million metric tons of coal per year passing through rail communities from the Powder River Basin through Spokane to Portland, and then to their destinations.

Bellingham — whatever job numbers one believes — at least gets jobs and some of the tax revenues if the proposed 48-million-ton coal terminal were built here, so one would suppose that a significant proportion of the 1,800 were supporters. One would be wrong.

In spite of predictions that Labor would bring in hundreds to garner the coveted 200 speaking slots, and a reported $866,000 astroturf campaign funded by proponents of the five proposed west coast coal terminals in the months before the first scoping meeting, fewer than 18 “I Support GPT” buttons could be seen in line. Terminal proponents were probably outnumbered by the paid staff present, including those manning the (unpermitted) tent between the parking lot and the line, offering coffee and Danish to anyone who would wear the green-and-white 2x3” GPT pins (opponents wore red-and-white stickers until they became drenched and fell off).

Alliance for Northwest Jobs and Exports, which claims nearly 11,000 followers on Facebook, had implored terminal supporters to attend the meeting in six posts shortly before the meeting. GPT’s timeline showed eight total posts, in addition to e-blasts, doorbelling, robocalls, telephone “town hall meetings,” and newspaper and radio ads.

At the end of the day, opponents could count only about nine statements in support of the terminal in both the gym and the auditorium. How could it be possible that the coal industry had spent nearly $100,000 per comment? Because, as James Wells recently wrote for the Daily Kos, while terminal supporters have the money, terminal opponents have the people. And, it should be added, we get the impacts and those impacts don’t stop at the state’s border.

Julie Trimingham, founder and editor of CoalTrainFacts.org, summarized what she heard in the two venues:

“A woman is out on her boat: September 2012, off Point Roberts. What is that black cloud up in the sky? Vast. Strange. She’s never seen anything like it. The wind had whipped up the coal stockpiles at Westshore. A woman in Bow lives close to the tracks. She’s older now, and relies on the rental income from her guest house. Her tenant is wonderful, but the train noise is getting to him. Any more trains, he’ll leave. If he goes, she’ll have to sell her home. A doctor who sits on the Tumor Board sees every case of diagnosed cancer in Whatcom County He enumerates risks that should be assessed, risks that are not abstract, but are tied to people, suffering. The owner of a sawmill 20 miles from the tracks itemizes shipping hassles, commerce tangles, costs to small businesses and jobs. A Lummi witness speaks in her language; it’s not just fish and crab at stake, it’s ancestral land, sacred space. A woman in a red coat says she is concerned when it’s safer to eat food from a can than out of your own backyard; her daughter is afraid that the bay she loves to swim in will no longer be safe.

“Specificity, concision, eloquence and thoughtfulness. Stunning miniature portraits, emotion well contained and well framed, about how coal export would change these many lives.”

Barry Wenger, who recently retired from the Washington Department of Ecology after 26 years where his duties included conducting “meetings just like these,” was stunned. He was there to comment as a citizen and resident of Bellingham but, having arrived late and with a higher number to speak, had to sit and wait his turn. He described what he heard as “remarkable” and said, “[T]o verify my perspective I queried my friends at the three responsible agencies to get their immediate feedback. Unanimous — across the board! They were blown away by the high caliber and quantity of insightful, intelligent, well informed scoping comments. Their collective reaction: ‘This community is really on top of their game! They must have had professional training since they really were focused on the issues and it showed.’”

Almost to a person, commenters did not merely state opposition to the terminal, but rather concerns about its specific impacts. Indeed, most did not state a position at all. Rather, they stated concern about specific impacts of activities related to the terminal, and asked the agency co-leads to scope those impacts in the EIS. That’s what Wenger meant when he said that he heard “scoping comments.”

The two phenomena that occurred on the 27th — the huge turnout and the quality of the comments — did not occur by happenstance, but represent the culmination of thousands of hours by both environmental organizations and community grassroots activists, along with a major contribution by a certain ex-mayor. For two years, groups both formal and informal have met to talk about impacts of the proposed terminal and related activities, the scoping process, and how to comment during scoping.

Jeff Margolis, co-founder of Safeguard the South Fork, said, “Here we are dealing with the biggest powers on earth — Goldman Sachs, SSA, BNSF, Peabody Energy, the U.S. Corps of Engineers — and we are giving them a run for their money, the likes of which they have never seen. If there is a book on peaceful community action, we are rewriting it.”

What is truly remarkable is the fact that the first chapter of the book Margolis described began less than two years ago, because in October 2010, SSA Marine’s Skip Sahlin was saying, “Grain’s the hot commodity right now.” By February 2011, SSA’s subsidiary filed a revised joint permit application and the hot commodity wasn’t grain. There might be a grain terminal in Stage Two, proponents said, but, as of today, they are only interested in building a 48-million metric-ton coal terminal. Eventually they might build a second multi-modal terminal which would initially likely handle calcined coke (a byproduct of BP Cherry Point operations) and Canadian potash.

The full story of the firestorm of activism and organization that has engulfed the Pacific Northwest and the Powder River Basin should be told another day. For purposes of discussing the scoping meetings that began in Bellingham on October 27th, suffice it to say that the coordinated efforts of the nation’s largest environmental groups and scrappy grassroots organizations resulted in an ongoing phenomenon that took the agency co-leads and their consultant, CH2M Hill, completely off guard.

Hired to manage the scoping process, including conducting scoping meetings and collecting and organizing comments, CH2M Hill representatives have, with each passing scoping meeting, increasingly underestimated community response. They planned for 300 in Friday Harbor on November 3; 450 arrived. McIntyre Hall in Mount Vernon seats 600 without the balcony, which venue managers insisted remain closed. When 1,000 calm, orderly people arrived on November 5 looking more like symphony attendees than crazed coal haters there to hurl themselves off the balcony, it was opened.

The thousands of names on e-mail lists compiled from sign-in sheets at Coal Hard Truth forums, tabling venues, and other informational forums actually represented a lot of people with a lot to say about all the ways it is not just a terrible — but actually absurd — idea to construct what would be the largest coal shipping terminal in North America in the middle of the Cherry Point Aquatic Reserve. One commenter in Friday Harbor seemed to summarize the sentiment of 90 to 95 percent of those in attendance when he said that adding 1,000 vessel passages through the Straits of Haro and Rosario was such an awful idea, he couldn’t believe it was even being entertained.

Also in Friday Harbor, a representative of the National Park Service described the breeding and nesting grounds of specific endangered and threatened species living on uninhabited islands in the San Juans, and the devastation that would result from a spill in either of the Straits of Haro or Rosario. She then looked straight at Roland Perry, co-lead for the Army Corps of Engineers, and declared, “You have a federal mandate [to protect federally owned shorelines].”

At the Friday Harbor hearing, GPT staff took the first places in line and, inexplicably, lined the sidewalk to the entrance with signs touting good jobs now …for Whatcom County! While that served to irritate the island residents, it didn’t distract them from commenting about significant adverse impacts. Many of their comments had been written in advance, and on the “party ferry” from Lopez to Orcas to San Juan Island, over 100 people refined their statements with additional information and edits recommended by friends and neighbors.

In another miscalculation in Friday Harbor, GPT spokespeople — who filled the first three slots — minimized the potential for vessel incidents, citing a retired Coast Guard official’s statement that the regional waters are wide and deep and there has never been a major spill. Avoiding the obvious analogy to Prince William Sound where there had never been a major spill until there was, a retired WSDOT ferry captain testified that the Coast Guard official was a pencil pusher who had no idea what he was talking about, and described being fortunate the two times in his career when he lost rudder control.

Local residents who had done their own research, and attended information sessions and comment-writing workshops, spoke with specificity of the 7.5 miles that a cape-class vessel travels when it loses power without the influence of currents, and the fact there is no rescue tug in the San Juans.

In Mount Vernon, several comments expanded on discussion of vessel-related impacts that can’t be mitigated, noting that most area bulkers and tankers must go through the Unimak Pass in Alaska before heading to China, and demanding that studies of cumulative impacts consider all potential disasters regardless of geographic location.

But the comment that brought the house down in Mount Vernon was from a Skagit County yoga instructor who angrily addressed GPT’s plan for spill or incidence response: “GPT’s Whatcom application states that a ‘site-specific emergency response plan would be developed and kept available at the terminal at all times. Spill and response measures would be implemented following an emergency or release of dangerous materials . .… coordinated with ALCOA and BP.’ … Bhopal, Chernobyl, Three Mile Island, BP Gulf spill, Exxon Valdez spill … all had a safety plan. … Make these rich corporations pay an up-front $50-billion-dollar damage deposit. … Prepay the safety plan and we’ll use dirty money to develop clean-energy, living-wage jobs! Now THAT’s a plan!”

The room exploded. Ignoring the rule to maintain absolute silence, the applause and cheers lasted long enough that it wasn’t clear if coordinators would terminate the testimony. Afterwards, the evening proceeded as though the roof hadn’t just blown off.

As in Bellingham, testimony in San Juan and Skagit counties addressed local business and industry that will be negatively impacted by rail and vessel traffic, and demanded a full accounting of the economic impacts on not just their communities, but all similarly impacted communities back to the Powder River Basin.

A retired attorney from Skagit County, on the ferry from Friday Harbor to Anacortes, had joked that opponents should design T-shirts that describe a negative economic impact on the front, with the statement, “Multiply That!” on the back. She was referring to the multipliers which economists use in estimating final economic contribution of an activity because GPT no longer talks in term of 219 permanent jobs at the terminal. They now claim there would be 2,000 to over 4,000 direct and indirect jobs during terminal operation. Many of the comments in Mount Vernon addressed that issue as business owners described with specificity how a loss of business impacted not just their employees but also their local suppliers who would be devastated by cutting downtown Mount Vernon in half with a total of 30 to 50 trains per day.

Comments about health impacts started with descriptions of children, grandchildren, and great-grandchildren growing up less than a mile from beaches or rail corridors. Doctors and emergency response coordinators described the difference minutes make when transporting heart attack and trauma patients. Citizens and health care providers alike demanded the co-leads include a thorough Health Impact Assessment.

References were made in comments to peer review, and even “blind” peer reviews, signaling that citizens in impacted communities either know what good studies should look like, or how to find those who do.

Many demanded that GPT mitigate impacts before the fact: build over- and underpasses at at-grade crossings in all impacted rail communities; and post bonds for spill clean-up, train derailments, and other potential catastrophes.

And nearly as many demanded that without full mitigation of the entire spectrum of impacts, the agencies conclude that no-action is the only feasible alternative.

After the Mount Vernon scoping meeting, Randel Perry, NEPA co-lead for the Corps of Engineers, said that it would ultimately be substantive comments, and not mere volume, which determines what comments impacts will be deemed “significant” in the scoping report. Whatcom County grassroots activists, long focused on training the public in how to make substantive comments, will continue holding comment-writing workshops until the end of scoping on January 21, 2013 (e-mail gptscoping@gmail.com to attend or host a workshop).

David Stalheim, a local land use specialist, cautioned that we must go further than talking about significant adverse impacts, to addressing mitigations and alternatives. San Juan and Skagit counties demonstrated that the public is quite capable of reaching those issues when the impacts are disproportionately large relative to local benefits of a project.

Stalheim also warned that we must articulate what the baseline should be for the no-action alternative, since GPT still holds the 1997 county permits to build an 8.2–million-metric ton multi-commodity terminal. However, SSA has never been interested in building that terminal, or at least not after the legal challenge of the 1997 permits resulted in a Settlement Agreement in 1999 which insisted on comprehensive storm- and ballast-water plans, good vessel traffic and herring studies, and more. Today’s cumulative impacts studies will look quite different than they would have in the 1990s, as well.

There is also the not-so-small matter that GPT never received necessary permits from state and federal agencies nor a lease from the Washington Department of Natural Resources. The Cherry Point Aquatic Reserve Plan states that aquatic reserve status is not necessarily inconsistent with a fourth pier at Cherry Point, but it was referring to the pier related to the terminal that was permitted in 1997. Further, it notes that DNR has not seen any studies required by the Settlement Agreement, and it was not saying it would grant a lease for a fourth pier.

The Lummi, immediately after the Water Ceremony of September 21th, put a website online (treatyprotection.org) announcing their two goals for Xwe’chi’eXen (Cherry Point): “First, to defeat the proposed SSA project. Second, to acquire Cherry Point, [and] have it placed in Trust status.”

As discussed in last month’s issue, English common law contains a public trust doctrine which is actually buried deep in the state’s SEPA guidance on alternatives and mitigations. It’s not clear what rights the Lummi have to take the land back, nor whether the state could re-designate the Cherry Point Aquatic Reserve, hold that its preservation is inconsistent with any piers, and grandfather in existing industry with a caveat that those plants may only be sold to the state.

GPT proponents have long argued, incorrectly, that limiting use of the land at Cherry Point by denying a permit to ship 48 million metric tons of coal is an illegal “taking.” A “taking” is not illegal, and it only applies if the government zones away or by permit conditions limits all economic benefit in the land. At that point, the government must compensate a landowner for the fair market value of the property.

Could the state, through DNR, based on information learned in pending and other necessary studies, determine that it must never grant a lease for a fourth pier? If so, might the state be willing, through DNR, to buy not only Pacific International Terminal’s property, but also the adjoining Cherry Point Industrial Park property which PIT holds an option to purchase? Perhaps not, but the EIS agency co-leads asked the public tosuggest reasonable alternatives to the pro- posed terminal, and “reasonable” is a highly subjective word in this context.

Here’s a reasonable alternative to propose in comments: Buy it back!


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