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Coal Fight Update: Washington State’s Unprecedented Expansion of the Scope of Environmental Review

Posted in Climate Change, Emerging Policy, Energy Policy, NEPA, SEPA, Sustainability, Uncategorized

The plot thickens in the coal terminal fight. In my last update on this issue, I covered the Corps’ decision to not consider issues such as rail traffic, coal mining, and shipping outside of U.S. territory, in the Corps’ review of the proposed Gateway Pacific Terminal under the National Environmental Policy Act, because the Corps had concluded those potential impacts are outside of the Corps’ regulatory “control and responsibility.”

Well, if the feds won’t do it, Washington seems quite willing to do so. Whatcom County and the Department of Ecology, joint leads for the State Environmental Policy Act review process, have announced that those agencies will consider the following potential impacts in their SEPA review:

Whatcom County and Ecology will require:

  • A detailed assessment of rail transportation impacts in Whatcom County near the project site, specifically including Bellingham and Ferndale.
  • An assessment of how the project would affect human health, including impacts from related rail and vessel transportation in Whatcom County.
  • An evaluation of greenhouse gas emissions from terminal operations, and rail and vessel traffic.

In addition, Ecology will require:

  • A detailed assessment of rail transportation on other representative communities in Washington and a general analysis of out-of-state rail impacts.
  • An assessment of how the project would affect human health in Washington.
  • A general assessment of cargo-ship impacts beyond Washington waters.
  • An evaluation and disclosure of greenhouse gas emissions of end-use coal combustion.

The last four bullet points–which Ecology is taking the lead on–have dramatic implications for permitting projects in Washington. I see this as another example of killing the goose that laid the golden egg because of the strong opposition to the export of coal in Washington. The SEPA review precedent being set here most certainly will impact permitting of other projects. For instance, will SEPA review of a new Boeing manufacturing facility now have to consider the lifetime emissions of airplanes produced at that facility? What about airports that are built to accommodate those airplanes? What about a new grain export terminal–vital in terms of Washington’s agricultural economy? Will the permitting of that terminal have to include an assessment of the cargo ship impacts beyond Washington waters? How about carbon emissions related to the transport of that grain?

The list of possibilities extends to many other commodities. What about agricultural seed supplies grown in Washington and then exported elsewhere? Does this mean that SEPA review should require an analysis of the impacts those farms have where they are located? What about the trucks, trains and ships that transport those commodities?

This decision reminds me of a quote by Justice Holmes that is over 100 years old, but seems to apply here:

Great cases, like hard cases, make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well-settled principles of law will bend.

N. Sec. Co. v. United States, 193 U.S. 197, 364-401, 24 S. Ct. 436, 468, 48 L. Ed. 679 (1904). The “hydraulic pressures” here are numerous, with the strong sentiment that Washington shouldn’t participate in activities contributing to global warming at the top of the list of these pressures. Everything else, the attack on train traffic, the coal dust issue, the citizen suits, flow from the concern about carbon emissions. This public sentiment has caused Ecology to bend–if not break–well-settled principles in SEPA. In terms of scorekeeping, this has to be a big disappointment to the proponents of the project, and balances out the relative “win” the coal proponents gained when the Corps declined to consider these issues under NEPA. I am somewhat disappointed with this decision, not because of any strong pro- or anti-coal views, but because I believe in the consistent application of laws and regulations–and it seems to me that Ecology has reshuffled the deck in terms of the ground rules in SEPA review because of the hydraulic pressure of the anti-coal forces.

I’m not convinced that the efforts to stop these coal exports will do anything to influence global carbon emissions. China–perhaps rightfully so–seems entitled to go through the same evolution of energy sources that the United States did. The United States’ industrial expansion was fueled by cheap energy from coal–and many other industrial countries are following that same trajectory. As coal use declines in industrialized nations, producers of coal will look for new markets. If not the United States exporting coal to China, it will likely be Australia or Russia. I hope that the SEPA review analyzes this point in detail and provides hard data to confirm or deny whether the export of, or lack of export of, coal from Washington will influence global carbon emissions.

Washington’s policy goals of addressing carbon emissions are laudable, if perhaps misplaced when it comes to all the efforts being taken to defeat the coal export proposals.  Instead of focusing on coal exports that may or may not influence carbon emissions globally, I feel we can do better in terms of local policies and programs. For instance, Washington ranks 43rd out of 51 states and Puerto Rico in terms of the economic viability of rooftop solar, despite Governor Inslee’s campaign promises of being a clean energy leader. We’re doing just a bit better than Oklahoma, hardly a state known for green initiatives or clean energy. Granted, part of that low ranking is cheap energy from hydroelectric plants, and part is because of a scarce solar resource, but a big part of that poor ranking is a lack of state-level incentives to encourage roof top solar installations. Similarly, Washington’s per capita energy consumption is below the national average, nestled in between Ohio and South Dakota in ranking. Even though that energy is not necessarily derived from carbon-based sources because a large part is derived from hydroelectric sources, increasing our energy efficiency throughout the state will increase the net export of energy derived from non-carbon based sources, and hopefully displace generation capacity that is carbon-emitting.

These types of efforts aren’t nearly as politically charged as the coal issue, and certainly do not stir political bases like the coal export issue did in the last governor’s election. Nevertheless, I can’t help wonder if we could make more progress on carbon emissions if all of the organized anti-coal forces directed their passion and political power towards the simple housekeeping matters within the state that would lead to things like greater utilization of solar and greater energy efficiency. Hopefully when the coal issue settles down, that redirection of efforts will occur.