GPT and County Council Elections
by Terry Wechsler
Terry Wechsler is a co-founder of Protect Whatcom and retired public interest attorney
Social media and local blogs buzzed in the end of May with the news that MSNBC aired a discussion of the significance of the Whatcom County Council race given their role in determining whether the Gateway Pacific Terminal (GPT) will be built.1 Locals harrumphed about failure of national media to pronounce our names correctly (“Watt’ kom” and “Loo’ mee” were particularly lampooned.) The more relevant information MSNBC got wrong was the role of the state and federal governments in permitting GPT. They thought the council alone would decide GPT’s fate when, in fact, without permits from the Washington Department of Ecology and U.S. Army Corps of Engineers (with EPA’s blessing), there will be no GPT.
What MSNBC got right was all that really mattered: the four county council seats up for election this year could determine the fate of what would be, if approved, the largest coal shipping terminal in North America and one of the largest in the world. Many people don’t know this, but those who do are keenly interested in the positions of the candidates in the county council race. Though the MSNBC interview aired shortly after the close of filing for local elections, discussion here had already heated up about what candidates could say about the terminal while campaigning.
Appearance of Fairness
Because the county council will sit in a quasi-judicial capacity if they ever do have to make a final determination about GPT permits, there will be limits to what they may say publicly , due to our state law called the Appearance of Fairness Doctrine. Think court of law and what a judge would not be able to do. Here, effective upon filing of the permit application, council members may not have ex parte communications about the proposal with proponents or opponents. As described below, they must only consider the record that comes to them. The thornier issue is what they may say during the campaign.
Jean Melious spelled out the murky conundrum in a 2011 blog post,2 noting candidates for office may, in fact, state their opinions on an issue that may come before them later, and the governing state statute does not distinguish incumbents. However, candidates must not display a bias, or seem to have “prejudged” an issue on which they may vote one day, because their ultimate determination must be based on the record before them at that time. What does that mean? It means that somewhere between prejudgment and legitimately stating one’s ideological views in order to inform voters how to make an intelligent choice lie grounds for an appeal of a subsequent permit determination. Where that line would fall is very fact-specific and subject to judicial interpretation, but blanket avoidance of the issue is probably not the best political course of action.
Finding the Facts and Inclusions of Law
To oversimplify, the council’s permit determination is “quasi-judicial” because they would not be legislating, they would be deciding and, as described below, they could conceivably hold a hearing. What they would decide is whether to approve two permits: the Major Development Permit, previously known as Major Project Permit; and the Shoreline Substantial Development Permit, hereafter referred to as Shoreline permit. The procedures for each are in different parts of the county code, but provide that the permit applications would be consolidated.
Before decision-making may occur, responsible agencies3 must complete the EIS. Scoping closed on January 21, and the responsible agencies currently are determining the scope of the environmental review. More later on scope but, procedurally, the agencies will at some point issue a draft EIS, triggering the public’s second opportunity for written input. During scoping, the public (and agencies and tribes) had the opportunity to address significant adverse impacts and alternatives, including mitigations. The agencies need only scope those impacts which are “significant,” and the DEIS will detail those which will be scoped, and the alternatives and mitigations that agencies believe should be weighed. They may detail studies they will conduct to gather needed additional information. Those commenting may reference studies or submit their own. Based on comments on the DEIS, the agencies will prepare a final EIS (FEIS) which will be the basis for permit determinations by the state and federal governments, but the county requires more.
In Whatcom County, both Major Project and Shoreline permits require an open record hearing before an independent hearing officer (IHO). We can anticipate, should the applicants wish to proceed to a hearing, some wrangling over how to manage oral testimony. With the release of the FEIS, the IHO will receive the scoping comments and comments on the DEIS, along with any studies conducted by the agencies or independently, but it is conceivable thousands may ask to testify at the hearing as they did at the seven scoping meetings (the agencies’ opportunity for the public to orally offer scoping comments). The agencies set strict time limits on length of oral comments and duration of the scoping meetings, which limited to precise numbers those allowed to orally comment. Less clear is whether and how the IHO could or would do the same.
After the close of the open record hearing, the IHO will write an opinion (“Findings of Fact and Conclusions of Law”) and make a recommendation to the County Council whether to approve or disapprove the permits. The opinion and the record will go to the County Council which, in a closed door meeting, will determine whether to adopt the IHOs recommendation with or without their own conditions. Prior to their final determination, they may seek additional information through a limited purposes open record hearing conducted by the Planning Commission, IHO, or themselves (ding, ding, ding, ding, ding), but figure the odds given the enormity of the record they will receive.
Part Affiliation and Position
The county permits require approval by a quorum of the council, or four votes, to be approved, which makes recusals for anti-terminal bias rather irrelevant. This bears repeating: if any council members recuse themselves, permits could not be approved by a simple majority of the remaining members, but would require a quorum of the council of seven, or four votes.
Already there is speculation about this campaign season and the four seats up for election. The candidates are:
Kathy Kershner (I)
Ken Mann (I)
Carl Weimer (I)
Bill Knutzen (I)
“I” denotes incumbents.
Kathy Kershner and Bill Knutzen are considered to be conservatives, and Barry Buchanan and Rud Browne more environmentally-friendly. Ken Mann and Carl Weimer, considered liberal, are challenged by Tea Party favorites Ben Elenbaas and Michelle Luke. There are no run-off races, so the first opportunity to vote will be in the general, at which point districts will be irrelevant; all voters vote for all four seats, regardless of district.
Each of the eight must decide how to craft their messages on the terminal, with supporters needing to be more careful than opponents, but if a candidate is pro-terminal and wants to communicate that obliquely, they have the advantage of being able to say “property rights” as code for “SSA should be able to build whatever they want.” Of the liberal candidates, a message about supporting jobs as well as the environment communicates nothing, and stating that economic development need not be incompatible with protecting the environment is even worse, because that’s essentially what SSA is promising about GPT. Ultimately, voters may have to trust the endorsements of trusted groups such as the pro-terminal AFL-CIO or anti-terminal Whatcom Conservation Voters.
At the national level, party affiliation does not necessarily equate with positions on the terminal, with Rick Larsen most notably entrenched in the pro-terminal camp because of the jobs and labor votes. Locally, however, party affiliation is a better barometer, and though the county council seats are nonpartisan, party endorsements probably track terminal positions.
The other interesting factor about this election is that, in races that have rarely seen budgets in excess of $40,000, MSNBC forecast millions could be spent this year. There are no limits on contributions to or expenditures by independent expenditure campaigns, so long as they are not conducted in coordination with candidates. Think ads against John Kerry, paid for by “Swiftboat Veterans for Trust.” It is impossible to know how much the Alliance for Northwest Jobs and Exports will spend, or how many groups will emerge with names that convey the “Good Jobs Now” mantra of terminal proponents. Environmental groups spent millions on elections in Washington in 2012, so they have the ability to respond to media blitzes funded by the fossil fuel industry, but it may not be clear how much media space and air time either side purchased until the last two weeks of the campaign.
3. For the county, Whatcom County Planning and Development; for the state, the Washington Department of Ecology; and for the feds, the U.S. Army Corps of Engineers.