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Oil terminal foes ask judge to void port approval

Environmental groups cite evidence of much more extensive violations

By Aaron Corvin, Columbian Port & Economy Reporter
Published: June 16, 2015, 12:00am

Three environmental groups are asking Clark County Superior Court Judge David Gregerson to reconsider an earlier ruling and to wipe out the Port of Vancouver’s lease for an oil terminal in light of “evidence of much more extensive” violations of Washington’s open public meetings law.

In their newly revised lawsuit filed on June 12, Columbia Riverkeeper, Sierra Club and the Northwest Environmental Defense Center allege the port unlawfully excluded the public from at least seven meetings. The port has acknowledged missteps but denied breaching the law.

The environmental groups base their new motion for summary judgment on multiple records their attorneys obtained from the port, depositions taken of port officials, previous court cases and the legislative intent behind the state’s Open Public Meetings Act. The groups argue the port’s violations were “systemic,” going far beyond a single executive session.

It’s unclear what impact, if any, a ruling against the port would have on the fate of what would be the nation’s largest rail-to-marine oil transfer terminal, proposed by Tesoro Corp., a petroleum refiner, and Savage Cos., a transportation company. The port took its first unanimous vote to approve the lease on July 23, 2013. The proposed oil terminal is undergoing a state-level permit review that includes an environmental impact analysis.

In legal filings, the port’s attorneys have contended the port addressed earlier complaints about its handling of a July 22, 2013, closed-door executive session by convening a second public meeting and vote on the lease. Any claims for potential violations of the meetings law “during the July 22 workshop, or earlier, were rendered moot” when the port held the second public meeting, received public comments and took a re-vote on Oct. 22, 2013, according to David Markowitz, Lawson Fite and Kristin Asai, attorneys with the Portland law firm of Markowitz Herbold who are representing the port.

Port commissioners also have publicly defended the port’s process, saying they held five public workshops before discussing and approving the oil terminal contract.

In the next several weeks, the port’s attorneys are expected to file responses to the environmental groups’ motion for summary judgment. Gregerson is slated to hear oral arguments at 1:30 p.m. on July 24.

The environmental groups’ initial complaint centered on the July 22 executive session. In a January 2014 decision, Gregerson ruled against the groups in saying he would not declare the lease null and void. His ruling was based, in part, on the port’s decision to hold a second public meeting and vote on the contract that undergirds the oil terminal.

However, Gregerson also made a ruling that was favorable to the environmental groups. He said there was a “public benefit” in allowing them to enter a pre-trial discovery phase to gather more information about the legality of the July 22 executive session. The groups’ June 12 motion for summary judgment marks a culmination of the information-gathering that Gregerson allowed their attorneys to conduct.

‘All aspects’

In their revised complaint, the environmental groups allege the port and its three commissioners — Nancy Baker, Jerry Oliver and Brian Wolfe — illegally excluded the public from at least seven meetings that were held as closed-door executive sessions: March 26, April 9, July 9, and July 16, 17, 22 and 23.

The March 26 meeting included a discussion of an exclusivity agreement with Tesoro and Savage, the lawsuit contends — subject matter that was outside the scope of the meetings law’s “minimum price” exemption.

The April 9 executive session, the lawsuit contends, involved nearly three hours of “introductions, presentations, questions, and other discussions” between commissioners and project proponents “before the project was even announced to the public on April 22, 2013.”

The suit asserts that discussions during that closed-door session “covered essentially all aspects” of the oil terminal project, including “number of trains and vessels expected at the facility, the impacts of underground pipes, rail capacity and need for rail modification, safety risks, utilization of underutilized facilities at the port, the numbers and types of jobs expected, the type of oil for transport and storage, the type of train cars to be used, impacts on other tenants, why the port chose Tesoro-Savage as the potential tenant, job creation, construction impacts, and variability in the market.”

The lawsuit argues that the presentation and pitch by project proponents and the initial questioning by commissioners that occurred on April 9 “are the very sort of deliberations for which (the state’s open public meetings law) demands public access.”

The complaint contends that during the July 9 meeting — two weeks before commissioners were slated to vote on the lease — commissioners continued a discussion of the joint venture under which Tesoro and Savage would operate and the risks associated with that. During July 16 and 17 closed-door sessions, the suit asserts, port officials met for a total of more than eight hours to discuss proposed lease terms that had been negotiated at that point.

The discussions covered a wide range of topics, the complaint contends, including the types and risks of crude oil that would flow through the facility, construction deadlines, pollution insurance, and ” ‘the size of the tanks and the risks associated with the tanks’ ” (such as those from vapors) and the port’s ability to require newer rail cars.”

“The public should not have been excluded from the board’s consideration on these important issues affecting the community,” the lawsuit argues, “issues such as the safety of the rail cars to be used to carry explosive oil through Vancouver.”

In asking Gregerson to nullify the lease, the environmental groups argue the purpose of the open public meetings law is to allow the public to view the decision-making process at every stage.

“It would undermine (the meetings law) to allow the lease to stand after it was repeatedly and extensively deliberated on during unlawful private meetings merely because there was eventually a publicly displayed vote,” according to attorneys for the environmental groups: Brian Knutson of the Portland law firm Kampmeier and Knutson, and attorneys Knoll Lowney and Elizabeth Zultoski of the Seattle law firm Smith and Lowney.

The unlawful development of the lease behind closed doors, the attorneys argue, renders the contract’s “ultimate formulation as a proposed lease void, regardless of whether the lease was formally adopted in public.”

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