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March 30, 2023

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Environmental complaint added to lawsuit against Port of Vancouver

Commissioners say issue of closed meeting on deal for oil terminal is now moot

By , Columbian Port & Economy Reporter

Three environmental groups that sued the Port of Vancouver alleging its approval of a lease for an oil transfer facility violated state open public meetings law have broadened their lawsuit to charge the port also violated state environmental laws.

In their updated complaint, originally filed on Oct. 2 in Clark County Superior Court, Columbia Riverkeeper, Sierra Club and Northwest Environmental Defense Center charge the port failed to follow the state’s Environmental Policy Act. The port’s failure is partly because it approved the lease beforecompleting an environmental impact statement, the groups say in court documents.

The port denies all of the accusations. It says a state agency — not the port — is conducting the oil project’s environmental examination. It also says the open public meetings charges have little or no practical value because the port held a second public hearing and took a new vote on the lease.

The fresh jousting in court between the port and the environmental groups represents yet another development in the ongoing public strife over the proposal by Tesoro Corp. and Savage Companies to build an oil-by-rail transfer terminal at the port.

The $110 million project would be the largest such facility in the Northwest, capable of handling as much as 380,000 barrels of crude per day to be shipped to refineries. The lease involves 42 acres and is worth at least $45 million to the port over an initial 10 years.

The Washington state Energy Facility Site Evaluation Council will review the companies’ application to build the oil terminal, filed Aug. 29, for at least a year. It will make a recommendation to the governor, who has the final say over whether the project gets built.

‘A major action’

The environmental groups modified their lawsuit Oct. 31 to include charges connected to the state’s Environmental Policy Act, or SEPA. The law, first adopted in 1971, requires state and local governments to consider environmental information, including impacts, alternatives and mitigation, before deciding certain matters such as new construction and land-use zones.

The environmental groups argue the port violated SEPA, in part, by approving the lease before it had taken either of these two actions: deciding the oil terminal would have no significant impacts or spelling out the project’s major effects in an environmental impact statement.

Because the port’s lease approval “is a major action significantly affecting the quality of the environment,” the port violated the law by failing to complete an environmental impact statement, argues Brian Knutson, an attorney for the environmental groups, with the Seattle law firm Smith and Lowney.

In approving the lease before addressing issues under SEPA, Knutson argues, the port also placed limits on its ability to “lease the property for other uses” and to include in the lease additional measures “to mitigate environmental and other harms and concerns.”

The port, which hired a Portland law firm to defend it,responded to the environmental-law allegations in updated court documents filed on Nov. 13. The state Energy Facility Site Evaluation Council — not the port — “is the lead agency and will conduct a complete SEPA review including preparation of an environmental impact statement,” argues Lawson Fite, an attorney for Markowitz, Herbold, Glade and Mehlhaf.

Also, the port’s decision to approve the lease “falls within a categorical exemption from SEPA,” Fite argues, and “the lease does not foreclose consideration of alternatives” under SEPA.

‘Rendered moot’

The environmental groups’ charge that the port violated state open public meetings law is basedon a July 22 meeting of the port commissioners about the oil terminal lease.

The groups allege that after the public comment period, commissioners held an illegal executive session, which excluded the public, to discuss and approve the lease in private. The port also failed to tell the public when the executive session would end, the groups allege, and failed to announce a valid purpose for the executive session.

Their suit, which names the port and its three elected commissioners, asks a judge to nullify the lease decision. It also seeks to compelthe port to disclose what commissioners discussed during the July 22 executive session and to prohibit the port from further advancing the lease until it complies with state public meetings and environmental laws. The groups also are asking to be awarded litigation expenses, including attorney fees.

Commissioners unanimously approved the lease during a public meeting on July 23.

The port denies the allegations, saying it neither deliberated on the lease outside of a public meeting nor approved it outside of a public meeting. Any allegations of meetings-law violations during the July 22 meeting “were rendered moot,” Fite argues, because the port held a second meeting, which was open to the public and included public comments, and took a new vote on the lease on Oct. 22.

The port is asking a judge to dismiss the charges and to award it attorney fees. To the extent the environmental groups are awarded any litigation costs under public meetings law, Fite argues, then they should be entitled only to those costs incurred before Oct. 22, when their meetings-law claims “became moot.”

Columbian Port & Economy Reporter