State Dept. of Ecology: Environmental Process for Coal Port Approvals Does Not Violate Int’l Trade Agreements

[Note: This article was revised after initial publication to include comments from the National Association of Manufacturers.]

Washington’s state chief environmental regulatory agency does not believe it is acting to delay the approval of a pair of marine terminal expansion projects in a manner that violates international trade agreements, according to a Department of Ecology spokesperson.

Questions were raised in a report released last week of whether the state-based broadened scope for environmental impact studies of proposed port expansions near Bellingham and Longview, Wash. also constitutes a delay that transgresses international treaties. The report commissioned by the National Association of Manufacturers was prepared with the assistance of former World Trade Organization judge James Bacchus. It concluded that the ad hoc environmental standards imposed on the approval processes for each port – including assessing impacts on climate change that may occur from the use of exported materials by foreign buyers – constituted “unreasonable” delays on permits for export activities.

[Read our previous article on the release of the NAM report.]

The NAM report asserts that the delays contravene international trade agreements, specifically the General Agreement on Trade and Tariffs.

Following the report, NAM sent a letter to Gov. Jay Inslee to request that a stringent, thorough but speedy process recommended by the Army Corps of Engineers be used in the permitting of the terminals, one that would not antagonize US trading partners.

NW Daily Marker reached out to Inslee for a comment on NAM’s report and letter and our inquiry was forwarded to the State Department of Ecology. By email, an Ecology spokesperson told us that there has not been any delay that would be in violation of GATT.

“The concern that state or local permitting delays are violating trade agreements rests on a premise that a delay is occurring,” the spokesperson for Ecology informed us by email. “The [State Environmental Policy Act] process has not delayed either project.”

[The entire response from the Department of Ecology is included at the bottom of this article.]

But understanding Ecology’s response may require knowing what their definition of “is” (or in this case, “has”) is.

Technically, no delay has occurred because what will likely be the most burdensome phase of the process – one that requires an environmental impact study that goes beyond impacts on the local environment to require project applicants to assess the broader impact on global climate – has not yet commenced. The Ecology spokesperson also indicated that the department disagrees with the legal interpretation.

“We believe that the GATT does not prohibit or restrict project reviews that are necessary to protect human health or the environment” the spokesperson claimed.

NAM reacted to the Ecology’s response by restating its firm belief that delays have already occurred.

“The review process for these terminals has already dragged on for nearly two years, and will span 4 years according to the current timeline. That is clearly a delay, when compared against other major investment proposals,” NAM Vice President of Energy and Resources Policy Ross Eisenberg told NW Daily Marker.

Eisenberg also voiced NAM’s concerns that the negative climate for business created by the government’s position could affect other areas of economic development.

“Manufacturers are opposed to the radically expanded environmental review process Washington has adopted for these terminals,” Eisenberg continued. “We’re concerned about the impact the new, global environmental review will have on future investments and on Washington’s role as a trade hub. To say that 4 years is a ‘normal’ review timeline, validates our concerns.”

The entire response from the Department of Ecology was as follows:

Governor Inslee referred the paper from NAM to the Department of Ecology, and requested the department to reply to your inquiry.

Ecology oversees the state’s portion of the EIS process for each of the coal terminal proposals, under Washington’s State Environmental Policy Act (SEPA). The Northwest Regional Office coordinates Ecology’s SEPA work on the Gateway Pacific Terminal proposal in Whatcom County.

The concern that state or local permitting delays are violating trade agreements rests on a premise that a delay is occurring. The SEPA process has not delayed either project.

For each proposed coal terminal, the U.S. Army Corps of Engineers, Ecology, and the county are coordinating the EIS process: shared consultant, common timeline. For the Gateway Pacific Terminal proposal, the agencies expect the federal (National Environmental Policy Act) and state/local (SEPA) review processes to take the same amount of time.

SEPA and NEPA review are normal requirements for any project and do not constitute delays.

We believe that the GATT does not prohibit or restrict project reviews that are necessary to protect human health or the environment. The NAM paper cites a GATT case that relates to delays in the issuing of export licenses for semi-conductors as part of Japanese government efforts to monitor the price of semiconductor exports. It is not clear that the same situation would apply to timelines for considering the approval of a coal export terminal.

Please note that an EIS scope defines what that EIS will study. The scope does not assume or predict any conclusions the EIS may reach. In addition, the EIS makes data available for, but does not dictate, permitting decisions. Those decisions occur under statutes and processes separate from SEPA.

SEPA and NEPA provide for input on the EIS by placing a draft before the public for review and comment. We expect and welcome that participation.




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1 Comment

  1. As a former Oregon legislator, this is exactly the response I would have expected to what amounts to a warning shot across the bow. The legal language in the response has holes big enough to fly a Boeing 747 through as the career bureaucrats engage in serious CYA if the NAM premise is correct.

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