BELLINGHAM - Whatcom County Council members are still wrestling with the challenge of maintaining an appearance of impartiality while they wait for the Gateway Pacific Terminal coal export project to come before them for final permit review.
That event is years away. While they wait, their legal adviser, Whatcom County Prosecuting Attorney's Office senior deputy Karen Frakes, has warned them not to do anything, say anything or read anything that could cause anyone to challenge their impartiality when their big moment arrives.
Frakes repeated that warning at a Tuesday, March 13, council meeting in responding to a question from council member Ken Mann.
"I really am frustrated," Mann said. "Can we at least have a little more latitude to read things and go to public forums?"
Frakes didn't encourage that.
"You're the decision-makers in this case, and it's important that you're not influenced by information that's floating around in the community that is not part of the record," she told the council.
When individuals and groups supporting or fighting the proposed Cherry Point coal export pier submit written material to the council, that material should be filed away to become part of the public record once the official process begins, Frakes said.
Mann wanted to know if he should avoid reading anything about coal or energy issues.
"Would you be reading that stuff if it wasn't an issue before you?" Frakes asked him.
"Probably," he replied.
"I can't tell you where the line is drawn," Frakes said. "You run the risk, if you go too far, of looking like you may have prejudiced the matter. ... At this point it is better to be safe than sorry."
Mann said he understood the concept.
"I'm not going to sign a no-coal petition or anything like that," he said.
Council member Pete Kremen said council members find themselves in a frustrating position. Constituents frequently ask council members where they stand on Gateway Pacific, but their legal role in the permit process makes it impossible for them to answer. A council member who shows evidence of pre-judging the case could face a legal challenge aimed at forcing him or her to sit out the proceeding.
"It seems absurd to the average person in our community," Kremen said. "It makes us appear, in my opinion, that we're ducking, but actually what we're doing is preserving our ability to represent this community."
Council member Barbara Brenner said she got an email from a constituent before the last election, warning her that she would not get his vote unless she took a stand on Gateway Pacific.
Brenner said she tried to explain that her role in the review of the project is similar to a judge's, and she needs to remain impartial.
His emailed reply: "You're not judges. What are you talking about?"
In a related manner, council members asked County Planning Director Sam Ryan who would pay the county's costs in the lengthy process of reviewing SSA Marine's application for the Gateway Pacific project.
Ryan replied that SSA would be expected to pay those costs. An environmental consulting firm will play a lead role in reviewing the project's environmental impacts, and SSA will pay that firm.
Ryan added that the county also expects to recover the cost it has already incurred in reviewing the project information already submitted to the county by SSA, but she said that was less certain.