How the Process Works - An Outsider's Guide to Cherry Point

[ed. I'm back. To celebrate, I'm posting an opinion piece I wrote before I left about a proposed coal export facility planned here in the Pacific Northwest. The project is officially called the Gateway Pacific Terminal, but everyone just refers to it as Cherry Point (the site where the terminal will be built). You can read more about it here. It seems to be a pretty big deal, with exports projected to reach 50 million tons a year, supported by 18 trains a day, each 1.5 miles long, snaking through the cities and countrysides of Washington state. I'm not sure how many readers are interested in the technical details of how the National Environmental Policy Act (NEPA) works, but these general guidelines could probably be applied to just about any kind of large project, anywhere.]

How The Process Works – An Outsider's Guide to Cherry Pt.

As a recent resident of this beautiful state it didn't take long to notice a significant controversy brewing over development of a proposed coal export facility at Cherry Point. Those 'No Coal' yard signs sprouting everywhere - seemingly competing for the title of state flower - were my first indication that something might be up. Then, last fall, project scoping hearings provided more detail about the project's design giving the public its first opportunity to comment, generating an impressive statewide turnout and much impassioned testimony. Since then, I've spent some time learning what I can but so far haven't formed an opinion one way or another. However, I have noticed that most of the attention to date has focused on the project's potential threats and benefits. I'd like to add another voice to the discussion by offering a perspective on how the process itself might unfold leading up to a final decision.

First, some background. I'm a retired habitat biologist with the Alaska Department of Fish and Game. I spent nearly 30 years of my career involved in environmental policy, planning, permitting and coordination on hundreds of large and small-scale development projects throughout Alaska, many of which required National Environmental Policy Act (NEPA) determinations and other regulatory reviews. The advice that follows is directed at opponents of the project - not because I identify with their cause, but because I believe a level playing field generally produces the best public policy results. Project advocates are undoubtedly well organized and moving forward with their objectives which should include securing all necessary permits with a minimum of financial commitments, and avoiding legal threats that could result in costly and prolonged litigation. They have the money, the connections, and the motivation. They don't need advice. But if opponents are to be successful in neutralizing some of those advantages they could benefit from having a better understanding of how the process typically works.

So, here are some guidelines:

1. Opponents will always be playing defense. Get used to it. Think of it like a football game. Project advocates are executing a game plan they think will take them to the end zone. It should be assumed they've considered every detail leading up to that result and are working behind the scenes to strengthen their position, with contingency plans in place for known vulnerabilities. It shouldn't be surprising, given the scope of the project, that there are probably well worn paths throughout the hallways of Olympia, and (since China is involved) maybe even the State and Commerce Departments. Along the way they'll probably introduce new plays (project redesigns, mitigation, legislation) that will position themselves to win. The defense can nullify or parry those plays, but in the end success is usually defined as a tied game, 0 - 0. Status quo. Opponents will never win on the strength of a single spectacular play (e.g., some killer issue) but they can anticipate the opposing team's strategy and act accordingly. Which brings us to the next point.

2. No issue is of overriding significance. Every issue has a constituency and there will always be someone or some group that will expect their concerns to be given top priority in the decision-making process. That's not going to happen. There is no moral imperative box that can be checked in a systematic and objective analysis, no a priori standing given to any specific issue. Everything is negotiable or can be mitigated, unless there are conflicts with existing law in which case exceptions may be granted or design modifications required. Everything is on the table until all the final hands are played. The corollary to this is that not all issues are equal. Some are big, some are small; some have direct effects, some indirect; some are easily resolved, some are pernicious; some are simply expressions of individual and community values. It's the NEPA document's responsibility to sort all this out and describe why some issues are more relevant than others, and what can be done about them. There is no issue that takes precedence over all others, except perhaps the financial solvency or commitment of the project's applicant.

3. Bureaucrats are your friends (and your enemies). We could review the standard NEPA process and describe how decisions are supposed to be made - for example, by citing Council on Environmental Quality (CEQ) guidelines, relevant case law, etc., but that wouldn't matter much in this discussion. A bullet-proof process is a basic expectation grounded in law. So, if you don't want to be sued or have your project consigned to some interminable administrative purgatory, the smartest thing to do if you're a project proponent or agency tasked with preparing the NEPA document is to get the facts right and let the chips fall where they may. This includes doing all the necessary science, economic analyses, social surveys, and other technical reviews that provide the best information possible so that the process itself is unassailable. If it isn't, the lawyers will let you know.

Nevertheless, behind this 'process' there are other ways in which the outcome of the final decision can be decided, not necessarily related to the information at hand. Bureaucrats aren't robots. Like everyone else they have personal opinions and professional motivations that can influence the way data are weighted and presented and how mitigation measures are developed (the NEPA analyses have been sub-contracted out to consultants, CH2M Hill, which adds another layer of opacity to the process, while the State has it's own State Environmental Policy Act (SEPA) review, which can sometimes result in tension between state and federal interests). As a practical matter, an effective strategy would include finding out who's doing what, who their supervisors are, and try to develop working relationships with as many people as possible so that, at a minimum, information sharing can occur as the process unfolds (caveat: the breadth and quality of that information can vary widely depending upon the personnel involved and the relationships one develops). Sometimes it's the only way to get a sense of what's going on behind the scenes if you want to affect a beneficial outcome. It also helps if you can provide something in return, like critical information that analysts may not have at their disposal (something lobbyists do to great effect).

4. Mitigation. Mitigation measures lurk at the heart of every NEPA analyisis. From an agency standpoint, they are the most important factor affecting a project's viability (political considerations aside). It's the tool regulators use to respond to various issues after all analyses have been digested, and the mechanism by which legal requirements are enforced (since mitigation measures ultimately end up as stipulations in project permits). If there are any differences between state and federal perspectives, this is where they'll likely be worked out. The process of developing mitigation measures also represents a time when interactions between agencies and the applicant are usually the most contentious, every mitigation measure representing an additional cost to the project's bottom line (along with potential legal exposure should later actions be found not to be in compliance)

Now, think a moment about who will be attending those mitigation meetings when these requirements are being hashed out (meetings which are usually iterative, distributed, and rarely, if ever, open to the public): you'll have the agencies, the applicant, occasionally consultants (from either side), and perhaps a lawyer or two. That's it. That's why it's so important to find out what's going on with the Draft EIS as it is being developed, and why opponents will always be playing defense.

5. Expect political meddling. What can you say about politicians (in polite company, anyway). They're motivated by mysterious forces: constituent issues, donor dollars, astroturfing campaigns, media controversies, petitions, public perceptions, and any number of other things. All I know is, based on my experience, one should always expect political meddling. The bigger the project, the more the meddling; although it usually never takes the form of a direct attack since that would be too alienating to opposing supporters and potential donors (and political collegues, if they are forced to choose sides). Instead what you're more likely to see are bills that nibble around the edges, limiting or expanding options that directly or indirectly affect a project's feasibility: transportation corridor improvements, modified zoning or land use designations, limited or expanded municipal and state authorities, that kind of thing. Also, expect behind the scenes manuervering to include old fashioned horse trading on pet issues, and budgetary threats to agencies that are perceived not to be on board with the game plan (see item #3). An effective strategy is to develop relationships with key politcal staff that are inclined toward your positions and use them to keep abreast of what's going on, in the process building trust and potentially influencing support. Again, it always helps to provide something in return – campaign assistance, community council coordination, help with voter initiatives, grassroots organizing, etc.

6. A final decision will be based on public policy. What is public policy? Basically, it's the sum total of all issues, expectations, influences, and politics that are brought to bear over the course of the analysis. It's also a reflection of the character of a state – it's history, it's economy, it's leadership, and it's vision. In other words, it's a balancing act. It's the biggest and most subjective element in the entire review process. The Administrator of the lead federal agency assigned to the task of developing the NEPA documents will eventually render a Final Record of Decision (ROD) based upon all relevant information, including a review of mitigation measures to avoid, ameliorate, rehabilitate, restore or replace values that are likely to be impacted, but the true fate of the project will have been decided long before in numerous regulatory skirmishes and behind the scenes manuevering. Despite the fact that the ROD is a federal document, the State of Washington will decide whether the project gets a green light or not because it has permits of its own to issue, and is conducting a concurrent SEPA review. That's both good and bad. Good in the sense that the people most affected by any decision will ultimately decide it's fate, bad because state politicians are notoriously short sighted and overly beholden to parochial and/or corrosive influences that have nothing to do with good public policy (I'm using my experience in Alaska here; who knows, maybe Washington's politicians posses the wisdom of the original founding fathers). And remember, state employees preparing the SEPA documents are accountable to those politicians. I can say from experience that I've never seen a large project die as a result of technical issues. It always comes down to economics or politics, usually both.

The fact that the proposed Cherry Point facility is an important component of a larger network of connected interests that begin with large mining operations in Wyoming and Montana, which then feed into large transportation and shipping conglomerates, which then impact a number of northwestern state communities and local economies, and ultimately contribute to China's national energy and security objectives, means that political pressures are likely to be high. Because of this, project opponents might consider doing everything they can to coordinate with national environmental groups, lobby Congress and their legislators, develop grassroots and media campaigns, and encourage a national dialog similar to what we see with issues like the Keystone XL pipeline and Arctic National Wildlife Refuge (which, as an aside, are both proxies for larger issues: global climate change, and the legitimacy of Wilderness designations, respectively). I know I didn't hear about Cherry Point until I got here, which tells you either how clueless I am or how low it currently flies under the national radar.

Finally, I'd only add one other thing and that is: success doesn't have to be a zero-sum game. Sometimes the best public policy ends not in a tie, but with each side extracting enough concessions so that what's left is something beneficial to both the economy and the larger environment. It is possible. Just remember the old saying: it's not a problem, it's an opportunity.

by markk

Photo: Dept. of Ecology, State of Washington