Don’t Keep Us in the Dark!

James Wells develops systems that support energy efficiency incentive programs. He spends his spare time encouraging people to actively participate in the decision about the Gateway Pacific coal terminal.

It’s quiet around here. Too quiet. The consultants for Gateway Pacific Terminal’s (GPT’s) Environmental Impact Statement (EIS) have secured their nine million dollars in funding and are off to their cubicles, to study the mélange of issues identified as being in the scope of study. The target date for completion of the draft EIS is April 30, 2015.

While the consultants are busy working on the EIS, we’ll get periodic updates on their progress, right?

Not exactly. It appears that there is no specific requirement in the law to let the public know what’s going on.

In the worst case scenario, we will receive a massive multi-volume report all at once, and then we will have as few as thirty days for our one and only opportunity to provide input on the EIS. Just thirty days to read the draft, check the content against other information, write comments, and get them submitted.

After that, the agencies do what edits they deem reasonable and the EIS is finalized, without any other public process. The EIS, once finalized, will tend to be regarded as the definitive work on the impacts of the terminal, even in permitting processes where other input is allowed.

Such a limited process would be wrong.

KC Golden, the Policy Director for Climate Solutions, puts it this way: “With so much at stake, environmental review of coal export should be rigorous, transparent, and thorough. And it must fully engage the public.”

Michael Riordan, an Orcas Island physicist who submitted several EIS scoping comments on fugitive coal dust, adds: “The draft EIS is likely to be a long, complex document with scientific claims that will have to be evaluated by experts, many of whom are busy professionals with other work to do. They will probably need several months to make thorough evaluations.”

If the public receives no information in advance about the content of the draft EIS, and then has as little as thirty or forty-five days to comment, then the EIS process will be deprived of important information. It may then be perceived as a less legally defensible process, when the time comes for the inevitable lawsuit.

Fortunately, it doesn’t have to be that way.

The entire EIS process, as defined by the National Environmental Policy Act (NEPA) and its state-level companion, State Environmental Policy Act (SEPA), is intended to create a full opportunity for the public, as well as other concerned agencies, to participate in the process.

There are several positive actions that the agencies can take. The most obvious, and possibly the most helpful, is to meaningfully extend the public comment period for the draft EIS. The public comment period on EIS Scoping was extended to 121 days, and the scoping process was simpler in many ways than commenting on the draft EIS will be. During scoping, the main reference document of interest was the permit application, and that was public record for six months before the public comment period began.

Ross Macfarlane, Senior Advisor for Climate Solutions, comments, “Given the complexity of the project, the wide range of issues that have been raised, and the unprecedented amount of public controversy and interest in this project, it’s completely reasonable to request an extended public comment period. I wouldn’t be surprised if the agencies provided more time than normal for the draft EIS comment period, just as they did during scoping.”

In addition to providing a reasonable public comment period such as 120 days, there are other actions that the agencies could take.

For instance, the agencies could release parts of the study, covering certain types of impacts, when those parts are completed. Several subparts of the EIS will be completed by subcontractors, operating independently. Since there is no possibility that all of these sub-studies will be completed on the same date, there is an opportunity to roll each one out in advance of the full EIS release date and let commenters get started on their research.

The agencies could also provide refined information about the included scope of the EIS, once this is fully known, during the course of writing the EIS. The currently published EIS scope is, to use a kind term, fuzzy. That’s somewhat understandable, since the finer points of certain impacts will only become known during the course of the study. However, after six or nine months of work on the EIS, it should be possible to determine, and to publish, more information on what exactly is being studied.

Dr. Frank James, who has worked hard to raise awareness of health concerns from the terminal, speaks in favor of providing information to the public as soon as it is known, saying, “Information about the scope and content of the EIS should be made public during the process of development, not just at the end. Keeping the public in the dark until the release of the draft EIS is likely to increase the chance of litigation and conflict over issues that could have been resolved better and more thoroughly with an open and transparent process.”

The agencies are certainly going to get an earful from both sides of this issue. Coal terminal advocates are expected to push for keeping the review process as limited as possible. Terry Wechsler, who has tracked the GPT EIS process very closely, puts it this way: “The agencies have dueling mandates: protect the environment, and streamline the permitting process so as not to unduly delay projects that should be built because they might be beneficial to the economy. We will see that tension play out as we request adequate time to review studies and the draft EIS.”

Assuring full and informed participation on the draft EIS public comment should not be controversial. If the facility is built here in our county, we will have to live with it, for better for worse, for decades. We need to thoroughly understand everything we are getting into. For the last word, let’s go once more to KC Golden: “That’s exactly what the coal industry should want, if they think the truth is on their side.”

Terry Wechsler, a public interest lawyer and co-founder of Protect Whatcom, consulted on the subject matter of this article. Protect Whatcom’s site (www.protectwhatcom.org) provides a thoroughly researched list of the dizzying array of carbon export proposals (coal, oil, and now LNG) currently facing the Pacific Northwest.

KC Golden and Ross Macfarlane, Jan Hasselman, and Jean Melious helped with discussion of the topic (but the author takes full responsibility for the result).

Thanks to Frank James, Michael Riordan, KC Golden, Ross Macfarlane, and Terry Wechsler for consenting to be quoted for the article.

Bill McCallum of Whatcom Watch points out that per the WAC 197-11-425 (4), the EIS document is limited to 150 pages. For an EIS on a project of this complexity, if this limitation is observed, an obvious way around it is to move much of the technical content into appendices.

EIS Web Site: http://www.eisgatewaypacificwa.gov

• Jack Louws, Whatcom County Executive. jlouws@co.whatcom.wa.us

• Alice Kelly, Northwest Regional Office, Department of Ecology, 425-649-7128, AKEL461@ecy.wa.gov

• Randel Perry, U.S. Army Corps of Engineers, Regulatory Branch
Northwest Field Office, 360-734-3156, Randel.J.Perry@usace.army.mil

• Tyler Schroeder, Planning and Development Services, Whatcom County, 360-676-6907 ext 50202, Tschroed@co.whatcom.wa.§s