Whatcom County, the Washington Department of Ecology and the U.S. Army Corps of Engineers were quick to offer reassurances that they plan to conduct an open and transparent environmental review of the Gateway Pacific Terminal project, despite language in a three-agency agreement that seems to indicate otherwise.
On Tuesday, Oct. 25, the three agencies released a joint agreement that spells out how they will share the lengthy and complex task of preparing an environmental impact statement for the Cherry Point terminal proposed by SSA Marine of Seattle. The proposed deepwater pier would handle coal and perhaps other cargoes for export to Asia.
The agreement notes that some documents that will be prepared during that task are exempt from public disclosure under state and federal public records laws because they are part of a "deliberative process."
The agreement then states, "Any party that receives a public records or FOIA (federal records) request that relates to documents that may be protected as deliberative process will involve the deliberative process exemption to the maximum extent possible."
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Jan Hasselman, attorney for Earthjustice, an environmental organization, found that language worrisome. He said the deliberative process exemption has legitimate uses by public agencies, but can be abused.
"It is a very narrow exemption and it is intended to protect a narrow class of internal deliberative policy documents from public disclosure," he said. "This exemption is routinely abused by federal agencies to keep private all communications, all drafts, all scientific analysis and all comment. ... Given the ambiguities and historic abuse to the privilege, it is troubling to see a joint commitment of three agencies to invoke this exemption to the maximum extent possible. That is not consistent with the promises that have been made about transparent public process."
Bob Ferris, executive director of ReSources for Sustainable Communities, shared Hasselman's concerns to some degree, although he said he understood what the agencies are up against.
"On some level it's not always good for everybody to see half-baked ideas," Ferris said. "That said, given the potential impact of this project ... I'm hoping in all areas where it makes sense, that they are as open and transparent as possible."
Officials with the Department of Ecology, the Corps and Whatcom County promised that would be the case.
"Ecology is deeply committed to the state public disclosure act and there is nothing in this agreement that would change that commitment," said Ecology's Larry Altose. "There's no intention whatsoever to diminish the obligations under that act."
Via email, Whatcom County planning supervisor Tyler Schroeder also said that nothing in the three-agency agreement would change the county's practices on records disclosure.
"Whatcom County intends to follow the laws of Washington and its own policies, as is its standard practice," Schroeder wrote.
At the U.S. Army Corps of Engineers, spokeswoman Patricia Graesser offered similar reassurances.
"There is no higher level of confidentiality on this application than on any other permit application being processed by the Corps," she said.
The written agreement also pledges each agency to consult with its two partners before releasing "deliberative documents." It seems to indicate that the consultation will give the agencies an opportunity to try to talk one another out of disclosing documents.
"After the consultation, if the party subject to the request maintains its determination that the documents are to be released, then the party will provide the parties of this (agreement) timely notice prior to the release of the documents."
Ecology's Altose said that paragraph commits the three agencies to notify one another when disclosure occurs, but no one agency will have veto power over any other agency's decision to disclose something.
Altose also noted that the deliberative process exemption is not forever. Documents can only be covered by that exemption when the review is still pending. Once the process is complete, those documents would be subject to disclosure under state law.
Attorney Hasselman said he hopes the agencies live up to their reassurances. He praised Whatcom County's performance on public transparency so far.
"They've been very good," he wrote in an email. "I hope this does not signal a new approach."