Activists plan initiative to outlaw coal trains in Bellingham

A empty coal train heads south through Boulevard Park Wednesday morning, Aug. 24, 2011.  The engine pictured is on the end of the train.
A empty coal train heads south through Boulevard Park Wednesday morning, Aug. 24, 2011. The engine pictured is on the end of the train. THE BELLINGHAM HERALD

BELLINGHAM - Ever since the plans for SSA Marine's coal shipping terminal at Cherry Point became public, city officials have been saying that they would have no direct control over the coal trains that would pass through the city if Gateway Pacific Terminal is built.

A new citizens' group plans to change all that, but they seem to face overwhelming legal odds.

Rick Dubrow, owner of A1 Builders, is one of the key organizers of a new political action committee called No Coal! On Jan. 26, Dubrow said the group will make public its draft of a proposed new city ordinance that would prohibit any transport of coal through Bellingham by rail or any other means.

In conventional legal terms, that doesn't seem to make much sense. The federal government regulates the interstate rail system, and BNSF Railway Co. has a legal right of way through the city. BNSF spokeswoman Suann Lundsberg said federal law requires the railroad to ship coal and other legal cargoes that shippers want to move via rail.

But Dubrow and Stoney Bird, a former corporate attorney working with the Bellingham group, say they are setting out to establish some new legal groundwork that would put the rights of communities and ecosystems on equal or greater footing with the rights of railroads and other corporations.

They are taking their cue from the Community Environmental Legal Defense Fund, which was involved in a successful 2010 effort to get the Pittsburgh, Pa., City Council to ban fracking for natural gas within the city limits.

On its website, that group's activists argue that existing environmental regulations do little more than slow the pace of ongoing environmental destruction. They envision a legal system that would recognize something they call the Rights of Nature.

In Pittsburgh, the council adopted a proposed anti-fracking ordinance without a citizen vote. Dubrow said he and his group would be open to that approach in Bellingham, as long as the council would be willing to pass their proposed ordinance as is.

"We don't want to give them (council members) the freedom to edit it,' Dubrow said. "We hesitate to allow editing because of the complexity of the legal aspects of the ordinance."

The group is also prepared to launch a petition drive to get the measure on the ballot if it comes to that, Dubrow said.

If such a petition drive were successful, BNSF or SSA Marine could challenge the initiative in court before a public vote is held. In the recent anti-traffic-camera initiative case in Bellingham, American Traffic Solutions went to court to get the initiative off the ballot. The courts eventually allowed the initiative to stay on the ballot, but judges ruled that it was not legally enforceable. Camera opponents are appealing.

In 2000, citizens collected enough signatures to get a referendum challenging a cut in Georgia-Pacific Corp.'s industrial water rates onto the ballot. But then-Mayor Mark Asmundson and the City Council refused to act on the matter, on grounds that prior court cases had clearly established that water rates were not subject to a public vote. Backers of the referendum expressed outrage but did not take the city to court, and no vote was held.

In 2001, a pro-business group tried to use a city referendum to challenge hefty new city stormwater fees, but Whatcom County Superior Court Judge Steve Mura accepted city attorneys' argument that city utility rates were not subject to public vote. Mura's ruling kept the matter off the ballot.

Craig Cole, an SSA Marine spokesman, had little to say about the No Coal! ordinance plan. In an email, he indicated that railroad operations are beyond the scope of city authority.

"Such matters are governed by federal and state constitutions and laws," Cole said.