Court Decision to Consider Orcas

SJ Update File photo, Whales & Shipping - Shannon Rankin, NOAA/NMFS/SWFSC

WA Supe­ri­or Court requires state to recon­sid­er impacts to orcas in Skag­it Coun­ty refin­ery expan­sion project
Thurston Coun­ty Supe­ri­or Court rules on deci­sion from Shore­line Hear­ings Board relat­ed to Marathon Oil’s Ana­cortes Refin­ery; envi­ron­men­tal groups appealed for fail­ing to con­sid­er ves­sel traf­fic impacts

THURSTON COUNTY, WA — On Fri­day, Octo­ber 11, the Thurston Coun­ty Supe­ri­or Court agreed with argu­ments made by a coali­tion of envi­ron­men­tal orga­ni­za­tions and more than 7,500 res­i­dents that the Shore­lines Hear­ings Board must con­sid­er whether Envi­ron­men­tal Impact State­ment (EIS) for a refin­ery expan­sion project in Skag­it Coun­ty ade­quate­ly con­sid­ers ves­sel traf­fic impacts to the Sal­ish Sea and the crit­i­cal­ly endan­gered South­ern Res­i­dent orcas, as well as the sig­nif­i­cant increas­es in pol­lu­tion that cause cli­mate change.

The Supe­ri­or Court rul­ing is relat­ed to a deci­sion from the Shore­lines Hear­ings Board grant­i­ng per­mits for an expan­sion project at Marathon Oil’s (for­mer­ly Andeav­or and pre­vi­ous­ly known as Tesoro) Ana­cortes Refin­ery to begin man­u­fac­tur­ing and export­ing xylenes — petro­chem­i­cals used in plas­tics pro­duc­tion — which would increase ves­sel traf­fic in the Sal­ish Sea.

“This rul­ing means that envi­ron­men­tal groups can now argue their case in front of the Shore­line Hear­ings Board that Skag­it Coun­ty failed to ade­quate­ly address impacts to orcas and cli­mate in the Envi­ron­men­tal Impact State­ment for the Ana­cortes Refin­ery expan­sion project. We look for­ward to hav­ing our day in court to get these issues resolved,” said Oliv­er Stiefel of Crag Law Cen­ter, the lawyer rep­re­sent­ing the case.

“This is a fan­tas­tic vic­to­ry for all of us who live and recre­ate in the Sal­ish Sea!” said Stephanie Buf­fum, Exec­u­tive Direc­tor of Friends of the San Juans.

The envi­ron­men­tal orga­ni­za­tions involved in the appeal in addi­tion to Friends of the San Juans include Ever­green Islands, Stand.earth, RE Sources for Sus­tain­able Com­mu­ni­ties, Friends of the Earth, and Puget Sound­keep­er Alliance.

The groups argued that their appeal of an EIS should be allowed because they chose to appeal the most rel­e­vant per­mit grant­ed under the EIS, rather than the first. An ear­li­er deci­sion by the Shore­lines Hear­ings Board had deter­mined that only an appeal of the first per­mit issued was allowed and that there­fore their appeal was out of order. As a con­se­quence, the Shore­lines Hear­ings Board has nev­er con­sid­ered the mer­its of the case — includ­ing con­cerns about Skag­it County’s fail­ure to address ves­sel traf­fic impacts to the Sal­ish Sea and the crit­i­cal­ly endan­gered South­ern Res­i­dent orcas.
The expan­sion project would allow the Ana­cortes Refin­ery to pro­duce and ship up to 15,000 bar­rels per day of mixed xylenes for export to pre­dom­i­nant­ly Asian mar­kets. The project would result in the addi­tion of approx­i­mate­ly 120 ves­sel tran­sits per year through the Sal­ish Sea.

Despite sig­nif­i­cant con­cerns raised dur­ing the pub­lic com­ment peri­od about the project’s ves­sel traf­fic impacts on the endan­gered South­ern Res­i­dent orcas, the increased risk of a tox­ic spill, and sig­nif­i­cant increas­es in pol­lu­tion that caus­es cli­mate change, the Shore­lines Hear­ings Board had not eval­u­at­ed whether the EIS ade­quate­ly con­sid­ered all of the project’s impacts. The deci­sion today revers­es that, and will require the Shore­lines Hear­ings Board to recon­sid­er the case and prop­er­ly eval­u­ate the impacts.

Read more in a Cross­cut op-ed: Cana­da is pro­tect­ing orcas from oil spills. Why aren’t we? (Octo­ber 2018)

Back­ground and Timeline:

• Sum­mer 2015: Tesoro pro­posed the project and began fil­ing per­mit applications.
• March 2016: Skag­it Coun­ty required a full EIS (envi­ron­men­tal impact statement).
• March- April 2017: Skag­it Coun­ty released a Draft Envi­ron­men­tal Impact State­ment, more than 7,500 com­ments were sub­mit­ted. The over­whelm­ing major­i­ty of them urged the Coun­ty to address con­cerns over work­er safe­ty stan­dards, petro­chem­i­cal spills in the Sal­ish Sea, risks to endan­gered orcas, increas­ing crude oil train traf­fic, and use of the new facil­i­ty for crude oil export. Com­menters also asked the coun­ty to sep­a­rate­ly review the xylene export and clean prod­ucts upgrade com­po­nents of the project, while prop­er­ly account­ing for green­house gas pollution.
• July 2017: Just two months after the end of the com­ment peri­od, the Coun­ty released a Final Envi­ron­men­tal Impact State­ment which was sub­stan­tial­ly unchanged from the draft EIS.
• Novem­ber 2017: Skag­it Coun­ty Hear­ing Exam­in­er held a pub­lic com­ment peri­od and pub­lic hear­ing on the Shore­line Sub­stan­tial Devel­op­ment Per­mit. More than 100 peo­ple attend, with 60 of the 65 pre­sen­ters speak­ing against the permit.
• Decem­ber 2017: The Skag­it Coun­ty Hear­ing Exam­in­er issued the per­mit. Six orga­ni­za­tions, with rep­re­sen­ta­tion by Crag Law Cen­ter, appealed the deci­sion to the Skag­it Coun­ty Board of Com­mis­sion­ers. Con­cerns raised by the appel­lant group focus on the need for a Con­di­tion­al Use Per­mit and the inad­e­qua­cy of the EIS’s analy­sis of spill risk, marine impacts, includ­ing the endan­gered South­ern Res­i­dent orcas and green­house gas analysis.
• Feb­ru­ary 27, 2018: A hear­ing was held in front of the Board of Com­mis­sion­ers with argu­ments made by both sides. More than 100 mem­bers of the pub­lic attend­ed the hear­ing most wear­ing red to sig­ni­fy oppo­si­tion to the project.
• March 2018: Skag­it Board of Com­mis­sion­ers erro­neous­ly deter­mined that exam­i­na­tion of project impacts beyond the foot­print of the Marine Vapor Con­trol Sys­tem were out­side their purview, effec­tive­ly affirm­ing the Hear­ing Examiner’s decision.
• April 2018: Appel­lants request­ed a review of the deci­sion by the Skag­it Board of Com­mis­sion­ers by the Wash­ing­ton State Shore­lines Hear­ings Board. Appel­lants request­ed that the SHB vacate the per­mit and require addi­tion­al envi­ron­men­tal review. The appel­lants allege that the review, per­formed by Skag­it Coun­ty staff, failed to ade­quate­ly con­sid­er the impacts from increased ves­sel traf­fic in the Sal­ish Sea, increased risk of petro­chem­i­cal and oil spills, increased emis­sions of green­house gas­es, increased impacts to air and water qual­i­ty and increased threats to pub­lic health and safe­ty. It also over­looked increased impacts to fish and wildlife resources — includ­ing the endan­gered South­ern Res­i­dent orcas.
• Sep­tem­ber 2018: Shore­lines Hear­ings Board issued sum­ma­ry judg­ment in the case, uphold­ing the per­mit and announc­ing a new rule, that in appeal­ing an EIS that relates to a project with mul­ti­ple per­mits, those with con­cerns must appeal the first per­mit issued regard­less of whether that per­mit relates to the iden­ti­fied concerns.
• Novem­ber 2018: Appel­lants request­ed a review of the deci­sion by Thurston Coun­ty Supe­ri­or Court.

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