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Local Review of the Gateway Pacific Coal Terminal

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Local Review of the Gateway Pacific Coal Terminal Seattle University School of Law Digital Commons Faculty Scholarship 1-1-2014 Coal and Commerce: Local Review of the Gateway Pacific Coal Terminal Henry W. McGee David A. Bricklin Bryan Telegin Follow this and additional works at: https://digitalcommons.law.seattleu.edu/faculty Part of the Environmental Law Commons Recommended Citation Henry W. McGee et al., Coal and Commerce: Local Review of the Gateway Pacific Coal erminal,T 4 SEATTLE J. ENVTL. L. 283 (2014). https://digitalcommons.law.seattleu.edu/faculty/485 This Article is brought to you for free and open access by Seattle University School of Law Digital Commons. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Seattle University School of Law Digital Commons. For more information, please contact [email protected]. Coal and Commerce: Local Review of the Gateway Pacific Coal Terminal DavidA. Bricklin,t Bryan Telegint & Henry W McGee Jr. TABLE OF CONTENTS I. Introduction ....................................... 284 II. History of the Gateway Pacific Terminal ............ ....... 288 A. The Original Proposal.............................288 B. The 1997 Lawsuit ................................ 292 C. The Current Proposal .....................................292 D. Federal, State, and Local Review Framework ......... ........ 294 E. Threats of Litigation ........................ ....... 299 III. Overview of the Dormant Commerce Clause .................... 301 IV. Application of Dormant Commerce Clause Jurisprudence ............ 303 A. Whatcom County Has Significant Authority to Deny the Project in Its "Proprietary" Capacity. ........................ ..... 303 B. Whatcom County has Significant Authority to Protect Local Natural Resources from the Direct Impacts of the Gateway Pacific Terminal. ............ .................... ..... 305 TDavid A. Bricklin is a partner in the Seattle-based law firm of Bricklin & Newman, LLP. His practice emphasizes environmental, land use, and community issues. Mr. Bricklin received his undergraduate degree from Michigan State University and is a graduate of the Harvard Law School, where he was co-founder and editor of the Harvard Environmental Law Review. Mr. Bricklin has practiced environmental and land use law throughout Washington State since 1979. He is a past President and Director of the Washington Environmental Council; former Co-Chair of the Washington Conservation Voters; and a founding member and Director of Futurewise (formerly 1000 Friends of Washington). : Bryan Telegin is an associate attorney at Bricklin & Newman, LLP. He is a 2010 graduate of Lewis & Clark Law School, magna cum laude, and has a Master's degree in philosophy from the University of California, Santa Cruz. * Henry W. McGee is Professor of Law at Seattle University School of Law and Professor Emeritus at the University of California, Los Angeles. 283 284 Seattle Journal ofEnvironmentalLaw [Vol. 4:1 C. Washington and Whatcom County May Consider Downstream Greenhouse Gas Emissions as Part of their Local Review................309 D. Consideration of Downstream GHG Emissions Likely Would Not Violate the Dormant Commerce Clause Prohibition on "Extraterritorial" State Laws. ........................... 312 V. Conclusion ....................................... 315 I. INTRODUCTION Coal has been described as "the dirtiest fossil fuel on the planet."' And the Pacific Northwest is facing a glut of it. For the first time in over twenty years, coal companies are pushing to expand their west-coast exports with new marine export terminals. Two of the proposed terminals - the 12,000-acre Gateway Pacific Terminal in Whatcom County and the 416-acre Millennium Bulk Terminal in Cowlitz County - are slotted for Washington. Combined, these two coal terminals would cost more than a billion dollars to construct;2 they would export nearly 100 million metric tons of coal per year, destined for Asian power plants; 3 and they would result in substantially increased vessel and rail traffic.4 Not surprisingly, the two proposals have drawn the ire of many 1. Aaron Corvin, Port Dodges Coal, Embraces Potash, COLUNMIAN (Apr. 3, 2011), available at http://www.columbian.com/news/2011 /apr/03/dodging-coal-embracing-potash-the-port-of -vancouve/. 2. See Project Information Document: Gateway Pacific Terminal, PACIFIC INT'L TERMINALS, INC. 1-6 (February 28, 2011), available at http://www.co.whatcom.wa.us/pds/plan/current/gpt- ssa/pdfl2011-02-28-project-info-doc.pdf see also Economic & Fiscal Impact Assessment of Millennium Bulk Terminals (Apr. 12, 2012), available at http://millenniumbulk.com/wp- content/uploads/2012/04/EconomicStudy-ExecutiveSummary.pdf. 3. See Gateway Pacific Terminal at Cherry Point Proposal, WASH. DEP'T OF ECOLOGY, http://www.ecy.wa.gov/geographic/gatewaypacific (last visited June 9, 2014) (reporting that the Gateway pacific Terminal is projected to export up to 54 million metric tons of coal per year); Millennium Bulk Terminals Longview (MB TL) Proposal, WASH. DEP'T OF ECOLOGY, http://www.ecy.wa.gov/geographic/millennium/ (last visited June 9, 2014). 4. The Gateway Pacific Terminal alone is expected to increase local vessel traffic by 487 round-trips per year between Whatcom County and Asian coastal energy markets. See PACIFIC INT'L TERMINALS, supra note 2, at 4-54. The Gateway Pacific Terminal is also expected to receive approximately nine train-loads of coal per day (or approximately 3,285 trainloads per year). Id. at 4- 51. According to the BNSF Railway Company, these coal trains lose between 250 and 700 pounds of coal dust per trip, which can foul local waters and potentially lead to health problems for communities along the rail line. See In re. Ark. Elec. Coop. Corp.- Petition for Declaratory Order: Public Hearing Before the U.S. Surface Transp. Bd. 39-49 (July 29, 2011) (Testimony of Gregory Fox, BNSF Vice President of Transportation) available at http://www.stb.dot.gov/TransAnd Statements.nsf/8740c7 18e33d77 4e8 5 25 6dd5 00 5 72ae5 /9e49ebf2fea43 1fl8525 7 8460066c 5 cb/$FILE/ 0729stb-exhpdf. The impacts of "coal dust" spilling off these trains, and into waterways throughout the state of Washington, are currently the subject of two citizen suits under the federal Clean Water Act. See Sierra Club, et al. v. BNSF Railway Company, No. 2:13-cv-00967-JCC (W.D. Wash. filed 2014] Coal and Commerce 285 Washington citizens and environmental groups. Environmental review of the two projects under Washington's State Environmental Policy Act ("SEPA")5 has generated more than 300,000 public comments.6 It is safe to say that the proposed coal terminals, if constructed, would be the largest coal export facilities ever seen on the west coast (and likely the most controversial, too). Indeed, the Gateway Pacific Terminal would be the largest coal export facility ever built in North America, and it alone would boost "America's total export of coal by some 40 percent."" In light of the dramatic impacts on climate change that might result from burning that much more coal, Washington Governor Jay Inslee has described approval of these coal terminals as "the largest decision we will be making as a state from a carbon pollution standpoint."9 To date, large west coast coal terminals have been a bust, with other facilities in Portland, Oregon, and Los Angeles failing in the 1980s and 1990s.10 Several Washington ports (including the Port of Vancouver, the Port of Tacoma, and the Port of Kalama) have rejected similar proposals June 4, 2013); Sierra Club et al. v. BNSF Railway Company, No. 2:13-cv-00272-LRS (E.D. Wash filed July 24, 2013). 5. WASH. REV. CODE § 43.21C. 6. Scoping Report, GATEWAY PACIFIC TERMINAL EIS (2012) http://www.eisgatewaypacificwa.gov/resources/scoping-report (reporting that the public scoping period for the Gateway Pacific Terminal generated approximately 125,000 public comments at in- person scoping meetings, online, and in writing); see also WASH. DEP'T OF ECOLOGY, supra note 3 (reporting that the public scoping period for the Millennium Bulk Terminal generated more than 215,000 comments from the public). While these numbers are already impressive, the outpouring of public comments on the two proposals is likely to grow significantly in the future. As discussed below, the projects have yet to receive their most intensive environmental review by federal, state, and local agencies. 7. See, e.g., Key Facts, COAL TRAIN FACTS, www.coaltrainfacts.org/key-facts (last visited June 9, 2014); see also Eric de Place & Pam Mac Rae, CoalExports from Canada: Why Coal Plannedfor Ports in Oregon and Washington Cannot Divert to British Columbia (July 2012), http://www.sightline.org/wp-content/uploads/downloads/2012/07/canada-coal 2012.pdf. 8. Letter from Maia Bellon, Dir. of the Wash. Dep't. of Ecology, to Hon. Doug Ericksen, State Senate, 42nd Legislative Dist. (Aug. 22, 2013), available at http://washingtonports.org/wp- content/uploads/2013/11/Annuall3-CLE-EcologyLetterGatewayReview.pdf. 9. Jessica Goad, Governor Inslee Calls Coal Exports 'The Largest Decision We Will Be MakingAs A State From A Carbon Pollution Standpoint,' Climate Progress, THINKPROGRESS (Jan. 22, 2013, 2:56 PM), http://thinkprogress.org/climate/2013/01/22/1480481/governor-inslee-on-coal- exports-this-is-the-largest-decision-we-will-be-making-as-a-state-from-a-carbon-pollution- standpoint/. 10. See Brett VandenHeuvel & Eric de Place, Coal Export: A history of Failurefor Western Ports (Aug. 2011), http://columbiariverkeeper.org/our-work/coal-export/coal-export-a-history-of-
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