GPT Permitting Is a Confusing Process

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

Before our County Council will make a determination on whether to grant or deny permits for the Gateway Pacific Terminal (GPT), a lot must happen. Scoping closed on January 21, which means the public, agencies, and tribes weighed in on what the EIS should study and consider. Of the 124,000 letters, emails and postcards submitted, some number may be deemed not to be “scoping comments” within the meaning of the governing laws – the state and national Environmental Policy Acts (SEPA and NEPA). The purpose of comments is to assist permitting agencies in narrowing the scope of the EIS to only “significant adverse impacts” and the alternatives to be considered, including mitigations. Postcards and form letters generally lack the sort of specific information agencies need to guide their determination. Further, mere statements of opinion (“Coal bad!” or “Jobs good!”) are not NEPA/SEPA comments at all and should not be counted.

Scoping Report Released

Remarkably, there may be 14,000 unique comments which do not merely state an opinion for or against the terminal, and which address impacts and alternatives. The Scoping Report, issued a scant two months after the close of scoping, offered few clues but was troubling in what it chose to emphasize and not emphasize. It talked a lot about proponents’ statements (“Jobs good!”) while glancing over reference to the hundreds of actual comments that came in to the record from the Powder River Basin states, from individuals in communities that would be impacted by mining and transporting coal to the West Coast. The seven scoping hearings were limited to Washington state, so Montanans held their own mock hearings, but one would not glean that from the Scoping Report.

There was also a determined effort in the report to use as many words as possible to say the least about impacts. Some issues were addressed multiple times in multiple sections, and much discussion was devoted to impacts of relative insignificance, while impacts known to be the most crucial received only passing reference. The most obvious example of that was in the alternatives section, which stated, “The no action alternative should identify and analyze all potential train routes and expected coal traffic if the proposals are not built and should account for loss of jobs, revenue, income, and lost opportunity to expand public services. The no action alternative should recognize existing coal exports from the west coast of Canada.” That sounds quite nice, but it mentions rail but not vessel traffic.

Terminal opponents generally agree that, while rail impacts have major implications, from a legal standpoint they are the weakest of the reasons to oppose the terminal because – on paper, at least – they can, to a large extent, be mitigated. “Don’t like diesel particulates from trains? No problem, just wait for the new generation of locomotives with substantially reduced emissions. Next!” Of primary concern is the potential impact of waterborne vessels on a fragile aquatic ecosystem, in which most of the forage fish populations have declined to alarming levels and numerous species above them in the food chain are on the endangered species list. Single-hulled cape class bulkers the size of Nimitz-class aircraft carriers, with up to a million gallons of bunker fuel on board, jockeying for space with thousands of oil tankers and other bulkers each year while passing through the Straits of Haro and Rosario (the migratory path of the Orcas) is a spill disaster waiting to happen. For the San Juan Islands, whose economy depends heavily on a marine-based outdoor recreation industry, there is no mitigation for such a scenario that does not assume “if” but, rather, “when.”

Scoping Report Omissions

What the Scoping Report did do, though, was devote an outsized amount of time talking about notice. The consultant hired to facilitate scoping, CH2M Hill, discussed in great detail the number of newspaper ads, announcements in the Federal Register, and emails it sent, without discussing what it did not do. It did not inform the public of the potential impacts to their communities, and it advertised in a limited number of communities, which did not include those living nearest the terminal or on the rail lines from the terminal to the mines. Likewise, U.S. and Canadian communities which would be impacted by a vessel spill received no scoping notices, though the San Juan Islands did get notice of their scoping hearing – with no description of potential impacts. CH2M Hill made much ado about its email list of 6,000 by the close of scoping, but the reality is that those on their list got there by learning about the scoping process from terminal opponents! Sierra Club alone has tens of thousands of members. A local citizen who had started an online petition had an email list the approximate size of CH2M Hill’s and, together with RESources, informed 10,000 members of the public about the scoping process, impacts and hearings, as well as how to get on CH2M Hill’s vaunted email list.

Who Gives Notice of Scope? Who Gets Notice?

The issue is, though, not that it was actually third party grassroots groups and NGOs informing the public. What is relevant is who was not receiving notice. In the Powder River Basin, Northern Plains Resource Council informed its members, but hundreds of thousands of individuals in mining and rail communities knew nothing of the proposals, and they should have. Alaska activists addressing the aftermath of the Exxon Valdez and working to oppose coal mining and export there knew about GPT, but most fishermen who would suffer if there were a significant spill in the Unimak Pass did not.

Certainly, no one received notice of the potential cumulative impacts of GPT and other coal terminals proposed in Washington and Oregon but, to understand the magnitude of the proposals, some scale is required. The entire nation exported 107 million short tons of coal from all existing terminals to all nations of the world in 2011, according to the U.S. Energy Information Administration. When scoping for GPT began, there were terminal proposals in Oregon and Washington which would have more than doubled that, and the entire volume was presumably going to the coast via a single rail route through the Columbia River Gorge.

Spokane received no notice of scoping, but there was an ad in their local paper, during scoping, announcing the upcoming scoping hearing with time, date, place, and proponents of GPT and the rail loop and spur, BNSF. Nothing in their newspaper ads informed them that there could be 60 coal trains per day, each 1.6 miles long, passing through their city if GPT and other terminals were permitted – they learned that from the Power Past Coal Coalition. No scoping notice addressed the fact that more than 2,000 coal bulkers could be added to the Great Circle Route to China through the Unimak Pass in Alaska. Grassroots activists did the research and the math and shared that information in a network facilitated by listservs provided by environmental NGOs.

These are but a few examples to illustrate what has been, to date, an egregious failure to inform the public about GPT and other coal terminal proposals. Because agencies must consider cumulative impacts, including reasonably foreseeable future impacts, federal agencies have guidance from the President’s Office of Environmental Quality, which oversees NEPA compliance, directing them to review permit applications and determine for themselves what potential impacts will be, who could be impacted, and the best means to inform those populations. Round one of future appeals should start with this issue and, as will be explained, a photograph of a certain pair of Amish farmers should be used for illustration.

Oligopoly Now

As many in the coal activist community now know, David Borntreger and his brother, Levi, moved to Montana to escape the crowded landscape of rural Missouri. Their families and those that joined them farm and ranch. They knew about a proposal by Arch Coal to open a mine upstream of them, which was worrisome, because mines are not good for downstream water users. They attended meetings to express their concerns, without hearing the word “railroad” until one day when David opened his mail and saw an aerial photograph of his ranch with a red line transecting it. The line represented a path 100 feet from his back door, between his house and his barn, and it was the path of the rail spur proposed by BNSF and Arch Coal to reach the Arch Coal mine from the existing line.

The coal that would pass Borntreger’s back door would be transported to the Columbia River, where three coal terminals were proposed until recently. Arch Coal is a co-proponent of a terminal in Longview, Millennium Bulk Logistics. Together with Ambre Energy, an Australian coal mining company, they propose exporting 44 mil. metric tons of coal per year (mmta; a metric ton equals roughly 1.1 short tons) from Millennium. Ambre also proposes to export another 8 mmta through a second terminal in Port Westward. Kinder Morgan, the nation’s leading coal terminal owner, had proposed a third terminal on the Columbia, also near Port Westward, but they could find no land to lease after prospective landlord PSE refused to allow them to place a coal pile near their plant. When the county began consideration of a rezone of hundreds of acres of agricultural land for industrial use to sell or lease to Kinder Morgan, coal terminal activists found they had a lot more friends and, after protests but before the rezone hearing, Kinder Morgan walked away.

Three companies dominate coal mining in the Powder River Basin (PRB): Arch, Peabody Energy, and Cloud Peak Energy. Peabody and Cloud Peak have contracted for 40 mmta export volume at GPT. This would make GPT and Millennium Bulk Logistics terminals second cousins at least, given Peabody’s and Arch Coal’s past dealings, including one particularly notorious joint venture. A few years ago, each transferred all their United Mine Workers of America (UMWA) health pension benefits to a Peabody spinoff, Patriot Coal, which Peabody recently declared bankrupt. The UMWA is currently appealing an initial ruling of the bankruptcy court as they desperately fight to save their benefits (“like” Fairness at Patriot on Facebook to follow their status, or follow the link on that page to their website to learn more).

Oligopoly

Those who took ECON 101 remember the textbook definition of an oligopoly: an industry in which four or fewer corporations control the lion’s share of the market. This is it. Three terminal proponents propose to ship coal for three mining giants, one of whom is a terminal proponent, moved on rails owned by BNSF and one of the mining companies. Yet the U.S. Army Corps of Engineers wants to say that the terminal proposals are not “related” enough for a Programmatic EIS, when the truth is that in many cases they’re not merely related, they are the same entity. The current GPT proposal is being treated as a Project EIS, meaning that only the local vicinity is reviewed for environmental impacts. Without a Programmatic EIS, David and Levi Borntregger will not get notice of scoping for Millennium. No one who receives notice of anything will ever know that, in addition to the cumulative impacts of the three remaining coal terminal proposals, in addition to existing rail traffic, oil tanker trains are coming or proposed, from tar sands and fracking, and bound for other west coast terminals, both existing and proposed.

Poor Relations Out Back

Members of the Power Past Coal Coalition, including the Sierra Club and RESources, have called for a regional cumulative EIS. The GPT Scoping report did not discuss the region it would scope in considering cumulative impacts, with the agencies stating that, after they have more time to review the applications and comments, they will make and announce their determination. What is already known is that the President’s Council on Environmental Quality (CEQ) held meetings in late 2012 to discuss that issue. Recently, CEQ announced they are drafting guidance on the extent to which federal agencies should consider CO2 contribution in EISs conducted under NEPA. Already the contribution of a proposal’s on-site activities must be considered, but the question is whether the contribution of the end-use of fossil fuels must be considered as well. Given that CO2 in the atmosphere just passed 400 ppm – a number few expected to see so soon – and taking into consideration the scale of China’s industrialization, climate change is certain to weigh more heavily in EISs in the future, so an area-wide cumulative impact analysis, were it to consider all coal (and oil and gas) terminals, is being aggressively attacked by the fossil fuel industry as a mere attempt by interfering environmentalists to stall the regulatory process and delay the creation of good jobs now!

Given the landscape, MSNBC was right to talk about the outsize responsibility resting with our County Council, but what they did not note was that GPT is but one of many fossil fuel proposals bearing down on our region and we are actually at the center of what one person names “The Biggest Environmental S***-Storm on the Planet.” For their part, the coal terminal proponents, mining companies, and BNSF created a lobbying organization – the Alliance for Northwest Jobs and Exports – and appear to be gambling on the hope that their past efforts to water down NEPA and SEPA, tighten the budgets of governmental agencies, and lobby the public and elected officials about the fabulous jobs they will provide, will win the day for them.

In the 90s, a coal terminal of the scale SSA currently proposes would have been deemed preposterous. Originally contemplated as a joint venture with Westar, the Canadian corporation that owns Westshore Terminals in Vancouver, the permit application filed in 1992 did not mention even the 5 mmta of Canadian coal the press reported Westshore might ship through GPT. The county’s permits for an 8.2 mmta facility made clear that they pertained to Canadian potash, calcined coke (a BP byproduct), sulfur, wood chips, and wheat only. Any other commodity or significant change in volume required a revised permit application.

Coal Demand Surges

At the time, the EPA recommended to the Corps that they deny permits for that terminal, and SSA never pursued state or federal permits until coal demand in China surged. BNSF needed new business to offset lost coal shipments in the US market weaning itself off coal; BNSF’s parent company Berkshire Hathaway bought a ton of Goldman Sachs stock; and Goldman Sachs infused a massive amount of cash by buying 49 percent of SSA.

But we are being asked to believe that the various coal proposals aren’t “related.” That notion is preposterous given that there is a common thread connecting the coal and other proposed west coast fossil terminals: BNSF. In the years to come, the full force of grassroots momentum born from opposition to fossil fuel proposals must be redirected to address the federal regulatory scheme which would have allowed the monstrous proposals and all the resulting direct local impacts on rail communities.