Counsel for the Environment influential in energy project siting

Little-known, state-appointed lawyer could have big role in oil-terminal decision

By Dameon Pesanti, Columbian staff writer

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In the state of Washington, the environment has its own attorney.

And that attorney, a member of the state attorney general’s staff, occupies a little-known but quite important corner of the state’s regulatory labyrinth through which Vancouver Energy’s proposed oil terminal at the Port of Vancouver must pass.

The attorney is given the title Counsel for the Environment, and his or her sole job is to support environmental protection during the regulatory review process run by the Energy Facility Site Evaluation Council. Despite the position’s obscurity, the Counsel for the Environment’s opinion could have an outsized influence on the environmentally conscious Gov. Jay Inslee as he considers approving or denying what would be the nation’s largest rail-to-ship oil transfer terminal.

Nathan Baker, staff attorney for the Friends of the Columbia River Gorge, said having a state-appointed attorney representing the environment is unique to Washington state.

“The (Counsel) is a position that should be taken seriously and can affect positive changes for the environment,” he said. Friends of the Gorge is an intervenor in the Vancouver Energy hearings coming up this summer.

The current Counsel is Matthew Kernutt, a Seattle Pacific University grad with both public and private legal experience. Kernutt won’t speak publicly about his job, and his work as Counsel is little-known outside the regulatory process. Yet his recommendations could play an important role in the state’s decision on whether to approve or deny the hugely controversial oil terminal, where environmental issues are central to the public debate.

The Counsel for the Environment’s history is rooted in the creation of the evaluation council some 46 years ago. It essentially takes environmental issues surrounding energy projects and puts them in a legal framework.

As evidence of that blending of legalism and environmentalism, one prominent academic once equated the position with Gideon v. Wainwright, the landmark Supreme Court ruling which made the right to an attorney an essential part of due process in criminal proceedings. That’s how one University of Washington law professor described the principle behind the Counsel for the Environment shortly after its creation in 1970.

“The public interest, no less than the personal freedom at stake in Gideon, demands equally diligent protection where the decision affects both society’s energy lifeline and the quality of the environment,” wrote UW law professor William Rodgers Jr. in the Washington State Law Review in 1972.

The state attorney general appoints the Counsel, but the person works independently from the attorney general’s office and other state agencies, and the applicant that plans to build the project. The Counsel’s expenses are paid by the attorney general’s office.

Just as an attorney would represent any other client, the Counsel for the Environment represents the public and its interests in protecting the environment’s quality during the quasi-judicial adjudication hearings held by the evaluation council for energy projects.

The Counsel’s job is to listen to the public to help them understand the process and communicate their concerns to the evaluation council. He or she also assesses the environmental impacts a project may have on nearby communities and the environment itself and builds a case around them.

During a hearing process that’s part of the regulatory review, the Counsel examines the developers’ plans and environmental assessments and cross-examines their experts. The Counsel can call on his or her own experts to testify on a range of issues such as wildlife habitat; noise, air and water pollution; air and water quality; and the general aesthetics of a proposed project. Ultimately the Counsel can recommend a project be approved with or without varying degrees of mitigation or recommend it be rejected outright.

In 2009, the evaluation council examined the Whistling Ridge Energy Project that proposed siting up to 50 wind turbines on 1,152 acres in Skamania County. Bruce Marvin, the Counsel on that project, recommended seven turbines be denied based on expert testimonies on wildlife and scenic resources. Gov. Chris Gregoire approved the project but denied 15 turbines.

“Having been involved closely in that process, I believe that the Counsel for the Environment’s advocacy on this issue played an important role in the eventual outcome,” Baker said.

Toiling in obscurity

Despite the significance of the Counsel’s work, the person who holds the position toils in obscurity. When The Columbian asked to speak with a professor of law, political science or history from Seattle University, Gonzaga University and the University of Washington, the response from their communications departments was near universal, “Sorry, no one’s heard of it.”

Rodgers, still a professor at the University Washington, has written at length about environmental laws. Yet he’s addressed the topic of Counsel for the Environment once in 1972 and again as a co-author for a Washington Law Review article in 2000. He declined to comment and deferred to his original writing.

The position is a little more familiar among attorneys in the environmental community. Baker, of the Friends of the Columbia River Gorge, said to his knowledge, energy project siting councils are fairly common around the country, but having a state-appointed attorney representing the environment is unique to Washington state.

The Counsel depends in part on how much funding the attorney general’s office is willing to spend on the position.

Former EFSEC chairman Jim Luce said that is a provision in the legislation he wants to see changed.

“Unless there’s some other source of funding for the Counsel for the Environment, you will always have the question of how strong a (Counsel) you have,” he said. “If (the Counsel) sees the need for a really important witness he either has to have the money from the attorney general’s office — a limited pool there — or he’s got to go beg one of the other parties to provide the witness.”

Indeed, in 1986 the environmental group Blue Sky Advocates filed a malpractice claim against the state attorney general for not providing enough funds to the Counsel to adequately represent the environment during the hearings on a coal-fired power plant proposed in 1980 for the rural Eastern Washington community of Creston. However, the state Supreme Court rejected the malpractice claim and, ultimately, the plant was never built.

“In terms of whether a (counsel) has any influence or does an adequate job of representing the environment depends on the project and person to person,” Baker said.

Counsel weighs in

Of the 20 energy projects the evaluation council has overseen in the last 46 years, 10 were approved, but only five were built and are still operating.

Archival documents available on the evaluation council’s website show that on 18 projects, the Counsel sought mitigation on nine, rejected five outright, and two projects were canceled shortly after the Counsel submitted comments. One project went through an expedited approval process and wasn’t argued in adjudication.

On the Creston coal-fired plant, the Counsel opposed the transmission lines but took no position on the power plant.

Mary Barrett, assistant director for the Washington State Department of Revenue, served as Counsel for the Environment on the Sumas Energy 2 Generation Facility, a natural gas power plant proposed in the northwestern city of Sumas, which sits on the Canadian border. The original proposal for the project came to the evaluation council in 1999 but the applicant revised it twice in 2000 and 2001 while Luce was still chair. He recalled that the project, which the council approved, had strong support.

“Sumas 2 was seen widely by the political establishment to be needed because of a very real energy crisis,” he said, pointing to the electrical crisis in California and the advanced technology that was going to be used at the natural gas power plant.

Despite its warm reception, Barrett gave a strong argument against it and recommended it be denied.

“In my opinion, the applicant was not able to establish that the energy produced would meet the energy needs of Washington,” she said in an email. “If Washington is not getting an energy benefit, and the environmental impact is high, it is the wrong site. There needed to be a better balance.”

Barrett had no prior environmental law experience and only a minimal understanding of the Counsel’s role before being assigned the position. She said being the Counsel means representing a much broader constituency than a typical client, because it includes the public’s views and future generations.

“Fundamentally, I was concerned that the negative environmental impacts were not outweighed by the possible local or Washington benefit from the energy produced,” Barrett told The Columbian.

She built her case by speaking with previous attorneys who held the position previously and by finding gaps in the applicant’s case based on the available documents and public comments. She called on experts to testify on climate change and greenhouse gases and energy transmission issues, among other things.

The evaluation council listed a number of conditions to lessen the project’s environmental impact, but Barrett argued the changes warranted restarting the evaluation entirely. Toward the end of the process she also tried to present new information on a newly discovered fault line that ran near the project, but the evaluation council wasn’t willing to hear more.

Luce said Barrett’s analysis was persuasive but the applicant’s willingness to meet the conditions and the evaluation council’s mandate for expediency made her argument less compelling.

“She made a tenacious case for protecting the environment and the interests of the people in the state of Washington,” he said.

In 2004, the evaluation council supported the project and Gregoire agreed, but it was never built because the Canadian government denied a cross-border transmission line associated with the project.

Kernutt, the current Counsel for the Environment, worked for his alma mater Seattle Pacific University before serving as an attorney for the Washington Department of Fish & Wildlife for six years, two private firms for about three years and then in the attorney general’s office in the government compliance enforcement division for about 2 1/2 years, according to his LinkedIn profile.

The attorney general’s office declined to make him available for an interview and declined to discuss the position beyond the description posted on the office’s website.

On Jan. 22, Kernutt filed comments in the environmental review of the Tesoro-Savage terminal, wherein he criticized the “flawed statistical analysis of train-derailment risk” and “insufficient analysis of the effort and investment” needed to fully prepare first responders. Kernutt’s position won’t be made public until the adjudication hearings, which are set to run in June through July.