Environmental groups appeal decision on oil terminal

Port of Vancouver 'confident' judge's ruling will be upheld

By Aaron Corvin, Columbian port & economy reporter

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Two environmental groups on Friday filed an appeal seeking to overturn a lower court's decision that the Port of Vancouver complied with state environmental laws when it approved a lease for the Northwest's largest oil transfer terminal.

Columbia Riverkeeper and Northwest Environmental Defense Center filed their petition with the Washington state Court of Appeals Division II in Tacoma. They argue, in part, that Clark County Superior Court Judge David Gregerson erred in ruling the port was allowed to approve the lease before a study of the oil terminal's public health and environmental impacts was completed.

The port violated the state Environmental Policy Act by "contracting away its ability to reject the project or require additional or alternative lease terms" before such an analysis was finished, the groups argue. And by leasing public land to Tesoro Corp. and Savage Companies before an environmental-impact investigation was launched, the groups contend, the port also undermined the Environmental Policy Act's "disclosure, public scrutiny, and decision-maker accountability functions."

Lawson Fite, an attorney with a Portland law firm that's representing the port in the case, said Friday "the port is confident" that Gregerson's decision was correct and will be upheld by the appeals court.

The environmental groups are asking the appeals court to nullify the port's lease with Tesoro and Savage, and to require the production of an environmental-impact study before any new contract decision is made. The port has until Sept. 12 to file arguments responding to the appeal filed by attorneys for Columbia Riverkeeper and Northwest Environmental Defense Center. The environmental groups may file counter-arguments by Oct. 10. A decision by the appeals court could come before the end of this year.

Meanwhile, the state Energy Facility Site Evaluation Council is conducting an environmental-impact examination of the Tesoro-Savage proposal to build a rail-and-river operation capable of handling 380,000 barrels of crude per day, for eventual conversion into transportation fuel.

Amanda Maxwell, a spokeswoman for the evaulation council, said Friday the appeal is a "separate action" that will "have no impact" on the evaluation council's ongoing work to produce an environmental-impact analysis under the state Environmental Policy Act. A preliminary draft environmental impact analysis may not be ready until sometime after August.

Backers of the oil terminal argue the estimated $150 million to $190 million project would produce jobs, increase port revenues and support U.S. energy independence. Opponents cite multiple concerns, including oil spills, explosive train derailments, toxic air emissions and detrimental impacts to the Vancouver waterfront redevelopment plan.

'Stacked the deck'

The port's Board of Commissioners voted unanimously to approve the lease twice in 2013. The lease involves 42 acres and is worth at least $45 million over an initial 10 years. As part of a broader ruling in January that partially favored the port, Gregerson dismissed the environmental groups' claim that the port violated the state Environmental Policy Act.

Gregerson said the law governing the evaluation council exempts the port from the state Environmental Policy Act's requirements. And he said the port's lease with Tesoro-Savage "contains enough outs" so that the port could ultimately decide against allowing the companies to build and operate the oil terminal.

In the environmental groups' appeal — filed by Miles Johnson, clean water attorney for Columbia Riverkeeper and Seattle attorneys Knoll Lowney, Brian Knutson and Elizabeth Zultoski — they say there's no question that the scale of the Tesoro-Savage proposal warrants review by the evaluation council under the state's Energy Facilities Site Locations Act.

But while the evaluation council has authority over the regulatory permitting decision, the groups argue, it does not control or pre-empt proprietary decisions by the port to lease or sell public lands. And the port was required, under the state Environmental Policy Act, "to wait for and use" the evaluation council's environmental-impact report "before negotiating and executing the lease."

Instead, the port decided the lease with no formal report on the environmental and human health risks, which prevented the public from providing meaningful input, the groups argue. Failing to disclose those risks "also insulated the port and the port commissioners — elected public officials — from public accountability," they argue.

They also contend that, contrary to Gregerson's ruling, the lease allows little or no flexibility for the port to walk away from the Tesoro-Savage project. Instead, they argue, the lease is written in a way that makes it very difficult for the port to withdraw from the lease or renegotiate it, even if the environmental-impact analysis reveals major environmental or human health risks.

"The port illegally stacked the deck in favor of (the Tesoro-Savage proposal)," the groups argue, "as defined in the lease before the environmental impacts of the project were understood."