Three environmental groups on Wednesday filed a lawsuit against the Port of Vancouver, alleging the port violated Washington state’s Open Public Meetings Act when it approved a lease agreement with two companies that want to build a controversial oil-by-rail operation.
In the lawsuit filed in Clark County Superior Court, Columbia Riverkeeper, Sierra Club and Northwest Environmental Defense Center allege the port broke state law by considering the lease with Tesoro Corp. and Savage Companies in secret and by using an executive session for improper purposes.
Port officials, including elected commissioners, said Tuesday they hadn’t yet reviewed the lawsuit and were unable to comment on it at this time.
“We haven’t received the lawsuit yet,” said Katie Odem, a spokeswoman for the port. “We can’t talk about it if we haven’t seen anything.”
Brett VandenHeuvel, executive director of Columbia Riverkeeper, said the “oil lease the port signed is unprecedented in the massive volume of oil and the threat that it brings to our region.” He added: “Important decisions should be made in front of the public, and secret meetings are inappropriate, especially when the decision is controversial.”
The lawsuit, which names the port and commissioners Jerry Oliver, Brian Wolfe and Nancy Baker as defendants, seeks to overturn the lease decision and to require the port to comply with open public meetings law by discussing a lease decision in public.
The lawsuit, filed on the groups’ behalf by Seattle law firm Smith and Lowney, centers on a July 22 meeting of the port commissioners about the lease agreement. It also cites information contained in a July 31 story by The Columbian that first revealed apparent breaches by the port of open public meetings law. That story prompted a citizen complaint, which led the state Auditor’s Office to say it will examine the port’s compliance with open meeting rules as part of the port’s next regular audit in early 2014. The port says it’s using a new procedure to ensure it complies with open public meetings rules.
‘A valid purpose’
Commissioners heard extensive public comment — overwhelmingly opposed to the lease — during the July 22 meeting. The lawsuit by the environmental groups alleges that after the public comment period, commissioners illegally excluded the public from witnessing their discussions about how the public testimony would affect their lease decision. Commissioners “then convened the next morning for a public vote but appeared to have previously collectively determined to approve the lease,” the lawsuit alleges.
As a result, the complaint charges, the port failed to take final action on the lease deal in an open public meeting.
The lawsuit also focuses on statements made by Commission President Oliver during the July 22 meeting. It alleges he violated public meetings law by failing to publicly announce, before convening a closed meeting, “a valid purpose” for excluding the public.
During the July 22 meeting, Oliver twice told a room overflowing with oil facility opponents that he, Baker and Wolfe would discuss their public testimony in private. At one point, he said commissioners would discuss people’s testimony “and how that impacts our deliberations.”
Oliver later told The Columbian that he misspoke and should have cited “real estate” as the reason for excluding the public and convening an executive session.
“In fact, we did discuss the lease as it pertained to real estate,” Oliver said at the time. He declined to say specifically what was discussed.
Public meetings law allows elected officials to meet privately in executive session only for narrow purposes. In the port’s case on July 22, the only real estate issue commissioners were allowed to discuss in private is related strictly to price, according to open public meetings law experts. Executive sessions are not to be used for discussing public testimony.
The lawsuit notes that commissioners were aware of the value, duration and number of acres involved in the proposed lease and that the port had entered into exclusive lease negotiations with Tesoro and Savage. Public deliberations about the minimum price at which the port would lease the property for the oil terminal “therefore would have been unlikely to decrease the price of the lease.”
Reached by phone Tuesday, Oliver declined to comment, saying he had not yet reviewed the lawsuit.
There’s also an issue of how the port incorporated the executive session into its public meeting. A meeting that begins in public may not be ended in private. The law requires elected officials to tell the public how long an executive session will last. The port failed to do that, with Oliver saying on July 22, “We’re now going to recess into executive session for a minimum 15 minutes … we’ll review your comments and discuss them.”
The lawsuit addresses the duration of the executive session, alleging Oliver, before convening the private meeting, failed to publicly announce “when that purported executive session would be concluded.”
$45 million lease
Port commissioners voted unanimously on July 23 to approve a lease with Tesoro Corp. and Savage Companies. The companies want to build an oil-by-rail terminal handling as much as 380,000 barrels of crude per day.
The lease, involving 42 acres, is worth $45 million to the port over an initial 10 years. It’s one of the largest financial arrangements in the history of the 100-year-old port.
The port has said the deal would be an economic boon for the community, allowing the port to re-invest $30 million in further industrial development, and creating a ripple effect of 2,700 direct and indirect jobs, as well as $18.8 million in state and local tax revenue annually.
Under the Tesoro-Savage plan, oil would be hauled to the port by train from the Bakken shale formation in North Dakota, where crude is extracted by hydraulic fracturing. The oil would be stored at the port and transferred to ships headed to U.S. refineries, which would convert the crude into transportation fuels.
The companies say the $110 million oil project will generate about 250 temporary construction jobs, 120 full-time jobs, filled mostly with local workers, and boost tax revenues for Vancouver and the state. They also say the oil terminal supports U.S. energy independence.
Opponents raise many concerns, including potential oil spills on the Columbia River, the safety of hauling oil by rail in light of July’s fiery oil train disaster in Canada, detrimental impacts on Vancouver’s waterfront redevelopment plans and the worsening of global warming.
In a news release announcing the lawsuit Wednesday, Marla Nelson of the Northwest Environmental Defense Center said: “The port wanted to keep the dirty oil plans secret. In light of the oil train explosion in Quebec that killed over 50 people, it’s shocking that the Port of Vancouver didn’t have a more transparent process.”
The oil terminal lease is not a done deal. The proposal by Tesoro and Savage will undergo a yearlong examination by the Washington state Energy Facility Site Evaluation Council. The public’s first opportunity to testify to the council is expected to occur in late October.
The council will review the companies’ 872-page application, submitted on Aug. 29, and eventually make a recommendation to Gov. Jay Inslee, a Democrat, who has the final say.