More than 15 years ago, BP Cherry Point refinery added a second wing to its oil transfer dock so it could receive more ships.
Before it was built, Fred Felleman helped environmental groups call attention to a federal law known as the Magnuson Amendment, which prevents projects that would increase crude oil tanker traffic in and near Puget Sound. They later filed a lawsuit to ensure that the dock wouldn’t violate that rule.
And now, a dozen years after the 9th Circuit Court of Appeals agreed with Felleman and others that the second wing needed to have an environmental evaluation before it was built, the U.S. Army Corps of Engineers still has not completed the court-ordered study, and there’s no indication when it will be finished.
Stuck in a loop
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Typically, a study known as an environmental impact statement is required before such a project can be built. In this case, since one wasn’t done beforehand, the dock continues to operate while the Corps and other agencies are supposed to figure out the potential impacts.
A draft of the environmental study was released in 2014, and thousands of comments poured into the Corps later that year. But since then, there hasn’t been any apparent movement toward finalizing the study.
On Jan. 4, Felleman, now a Seattle port commissioner, met with Col. John Buck, commander of the Corps’ Seattle District, and learned that despite years of waiting, there is still no estimate for when the environmental impact study for the dock will be done.
During his time on this case, Felleman said he has worked with eight different Corps colonels.
“We were hoping the colonel could tell us this could get done in a certain time,” Felleman said.
But Buck explained that the Corps was waiting on Endangered Species Act information from the National Marine Fisheries and U.S. Fish and Wildlife services. However, Felleman said that when he spoke to those agencies, they’ve explained they can’t start that work until the Corps decides how to deal with the Magnuson requirements.
This loop (Buck) says he is in is nothing but passing the buck off to another administration, another colonel.
Fred Felleman, environmentalist and Seattle port commissioner
“They’re saying in order for us to consult on the impact of this permit you issued, we need to know how you’re going to interpret the Magnuson Amendment, whether you’re going to condition it on the number of tankers to call on the dock,” Felleman said. “If you say there’s no limit, obviously the jeopardy that puts endangered species in is entirely different than if it caps the number of tankers.”
The Corps asked those two agencies for the endangered species consultation in June 2014, and the work has been pending since, said Corps spokesman Scott Lawrence.
“We believe we have a path forward to allow them to complete their consultation prior to us making our final decision,” Lawrence said.
However, there is no set date by which the final study is expected to be finished, he said.
Even if the agencies have found a way to go forward, the study will still take at least another year to finish, Felleman said.
“I’m done being patient,” he said. “Since this process started, we have less orcas, herring are all but extinct at Cherry Point, there’s less salmon. The urgency to this situation is being felt everywhere but at the Corps.”
The key piece to the study is whether the construction of the north wing of the dock increased the south wing’s capacity to handle crude oil. If it did, that would violate Magnuson.
“This is a case of first impression,” Felleman said. “Even though it was written in 1977, we have a ruling upholding Magnuson. This is the first time that has ever occurred.”
The “new” north wing can handle only refined products. The south wing can handle both crude and refined products.
The Corps states in its 2014 draft study that since the south wing hasn’t been modified since it was built in 1971, “its handling capacity for crude oil has not changed.”
If it received only crude, the south wing could theoretically handle up to 315 crude oil vessels per year, the Corps calculated.
In practice, that dock received between 100 and 191 crude oil vessels per year from 1990 to 2010, though the volume handled isn’t necessarily reflected in the number of ships, since a larger number of smaller ships called on the dock sometimes.
Felleman contends that adding the second wing did increase the crude oil capacity, and the amount handled at the dock needs to be limited to the same amount it was able to handle when the dock was still handling crude and refined products.
“Building a second dock obviously increases capacity, so to be in compliance with Magnuson, you have to cap the use of the dock,” Felleman said.
The concerns he and others have about an increased risk for oil spills have only heightened in recent years, especially with Congress lifting a ban on the export of domestically produced crude oil, and the recent decision by the Canadian government to expand the Kinder Morgan Trans Mountain pipeline, which will increase tanker traffic through the Salish Sea.
Concern about overreach
Felleman worries that because of the lack of urgency to get the study completed, local officials and environmentalists in places such as Whatcom County and near the Columbia River are now trying to pick up the Magnuson cause, and that could work out against them in the end.
“The fact that this is now playing out at the local level is in part because the Corps didn’t do their part at the federal level,” Felleman said. “I think the urgency would be less so if the Corps did their job. It would certainly be less subject to legal challenge. Here we are upholding a law, rather than trying to blaze a new law.”
Whatcom County is among the communities trying to blaze new laws.
The Whatcom County Council tasked its Planning Commission with looking at legal ways to restrict unrefined fossil fuel exports from Cherry Point in mid-2016. Part of the commission’s ongoing discussion has been around how it can ask the federal agencies to enforce and follow the Magnuson Amendment.
That’s a shift from proposed County Council language that would have required the same limits under Magnuson be applied to county employees.
“I’m deeply concerned that overreaching use of it basically builds the argument that the law is being misused,” Felleman continued. “It’s written only to apply to federal permits. Only to apply to crude oil. Only to apply to facilities east of Port Angeles.”
The Planning Commission will next discuss policy changes that affect Cherry Point at its Jan. 12 meeting.