West Coast Climate Hawks to Push Back Against Trump

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By Paul Shukovsky and Carolyn Whetzel

Companies hoping for less rigorous regulatory review under the Trump administration will likely be disappointed on the West Coast where Democrat-dominated governments, tribes and environmental activists are prepared to push back using a broad range of authorities.

Local governments in Portland and a Washington county on the border of Canada are using their land-use and zoning authority to stop fossil-fuel export projects.

Last year in California, the city of Benicia and San Luis Obispo County rejected crude-by-rail projects and Oakland blocked a proposed coal export terminal at its port. Other cities and counties in the state have ordinances, either adopted by governing bodies or passed by voters, limiting or barring certain oil and gas activities, including hydraulic fracturing.

Native American tribes in Washington and Oregon are using their treaty fishing rights to stop coal and oil from being shipped on waters that comprise their fisheries.

Successful, local battles like these have become a tool for communities and states to pursue climate goals, even if President-elect Donald Trump does nothing to address global warming.

“Local decision making is A: legal, B: entirely appropriate, and C: of increasing importance if the Trump administration follows this hoax-in-China philosophy,” Washington Gov. Jay Inslee (D) told Bloomberg BNA in a Jan. 5 interview in his office.

Requests for comment from the Trump transition team were not returned.

Portland Bans Fossil Fuel Terminals

Portland’s politically progressive City Council used its zoning authority Dec. 14 to ban new fossil fuel terminals over two million gallons, specifically declaring in the ordinance that the fuels are major contributors to climate change.

The move likely eliminates Oregon’s largest seaport as a gateway for the export to Asia of Bakken crude as well as any moves to increase capacity at existing petroleum terminals there including BP West Coast, Chevron, Phillips 66, Equilon/Shell and Kinder Morgan.

“There is strong interest in a green wall of progressive policy along the West Coast that says we are still serious about climate action; we’re still committed to a low-carbon future; and we’re not interested in moving fossil fuel to world markets through our cities exacerbating the problem that we are all working locally to solve,” Portland Mayor Charlie Hales told Bloomberg BNA in a telephone interview just before leaving office Dec. 31.

Hales said there were “no caution flags from our city attorneys about this. One of the fundamental authorities of cities is our zoning codes. It’s a bedrock power of local government to zone.”

Citizens and voters up and down the West Coast want their leaders to focus on climate change, Hales said. The vote was intended to map the path for other cities to take action on climate change “in ways that are completely within the authorities of local government. Everybody has got a zoning code.”

California Law, Ballot Box as Tools

In California, environmental advocates, tribes and others routinely use the California Environmental Quality Act to block power plants, refinery upgrades, warehousing projects and other developments they allege will increase greenhouse gas emissions. CEQA provisions require project environmental reviews, alternative assessments and mitigation measures. But, the act also includes public participation in the decision making process.Any legal challenge filed typically follows approval of a project by land use or permitting authority. If successful, the litigation could derail a project or force project changes to reduce climate impacts.

It was widespread public opposition to the crude-by-rail facilities in Benicia and San Luis Obispo County and Oakland coal terminal that prompted local officials to reject those projects. Concerns about the safety of moving crude by rail helped defeat the proposed projects. Anti-fossil fuel groups also have worked with community groups to win voter initiatives to block expansion of oil and gas activities in California.

‘Tribes Lead the Fight’

In Washington, a juggernaut of grassroots opposition to what would have been the largest coal export facility in North America focused on rejecting the Gateway Pacific Terminal through both the state and federal environmental-impact-statement process. But it was an Indian tribe, the Lummi Nation, using its treaty-protected fishing rights that ultimately derailed it.The proposed terminal—located a few miles south of Washington’s border with Canada on the waters of the state-owned Cherry Point Aquatic Reserve—would annually ship to Asia up to 52.9 million tons of coal mined largely from federal lands in the Powder River Basin. SSA Marine, a global terminal and stevedoring company, holds 51 percent of the project shares, and Cloud Peak Energy Inc. owns 49 percent. Berkshire Hathaway Inc.'s BNSF Railway Co. planned haul coal to the terminal from the northern Rocky Mountains.

Col. John Buck, Seattle district commander of the U.S. Army Corps of Engineers, said in a May 2016 press briefing that a large wharf and a trestle structure at the proposed terminal would interfere with the Lummi fishery. “The corps may not permit a project that abrogates treaty rights,” he said. “Only Congress has that right.”

Lummi Nation Chairman Tim Ballew II responded to the victory in May with this statement: “As tribes across the United States face pressures from development and resource extraction, we’ll continue to see tribes lead the fight to defend their treaty rights, and protect and manage their lands and waters for future generations.”

‘We’re Following the Law’

On the Columbia River near Longview, Wash., is the site of another proposed coal export facility called the Millennium Bulk Terminals that has inherited Gateway’s mantle as the largest such facility on the continent.

Lighthouse Resources Inc. owns the project, having acquired Arch Coal’s 38 percent interest in Millennium in 2016. Arch in exchange got long-term throughput rights.

Inslee administration officials in the state’s Department of Ecology had planned to conduct a joint environmental impact statement with the corps on Millennium. But the two agencies parted ways when it became clear that the corps planned to analyze only very local impacts while the state planned a much broader analysis based on its reading of the State Environmental Policy Act.

In a decisive split with federal regulators, state officials conducted a broadly scoped environmental analysis of cumulative and indirect impacts of a proposed coal export facility—including greenhouse gas emissions from combustion of U.S. coal in Asia. The final EIS from both the corps and the state are pending.

“When coal is burned, it doesn’t matter if it’s burned in Korea or China or Indonesia, that CO2 acidifies my home waters,” Governor Inslee said of the decision by his administration to evaluate the terminal using a much broader scope than the feds. “So we’re following the law, which is to give citizens in the EIS process knowledge about what will happen if we in fact do this. I believe it is a legal thing to do and I also think it is the right thing to do from the policy perspective given the damage that my state is undergoing right now.”

Another Way to Say No

With the state’s final EIS pending for Millennium, Inslee declined to discuss how his administration would rule on the state permits. But if he planned to say no to Millennium, another state-wide elected official beat him to the punch Jan. 3.

Washington Commissioner of Public Lands Peter Goldmark (D) moved Jan. 3 to block Millennium’s access to the river by rejecting the terminal’s sublease of state-owned aquatic lands. The project relies on the construction of two docks on the Columbia.

Millennium would move up to 48.5 million tons a year. And if Gateway remains in its moribund state, it is the last hope in the near-term for a Northwest terminal allowing for export of U.S. coal from the Powder River Basin in Wyoming and Montana and the Uinta Basin in Utah and Colorado to markets such as South Korea, Japan and Taiwan.

From Goldmark’s perspective, his decision kills the Millennium project, though Millennium Chief Executive Officer and President Bill Chapman said in the Jan. 3 release that Goldmark’s decision “has no effect on the project moving forward.”

Goldmark, who did not run for re-election, is succeeded in January by Hilary Franz (D), an environmental attorney with broad support from conservation groups.

‘The Right Thing to Do’

Goldmark, who as lands commissioner was also the chief of the state’s Department of Natural Resources, did not stop with his Jan. 3 decision to kill the proposed coal export terminal on the Columbia River. He also sought on the same day to put another nail into the coffin of the Gateway Pacific Terminal by ruling that the Cherry Point Aquatic Reserve will be expanded to include a 45-acre cutout that had been put in place to accommodate Gateway’s proposed pier.

“Any projects proposed in the future for this site would have to be compatible with DNR’s 2010 Cherry Point Aquatic Reserve management plan, which precludes activities likely to have detrimental impacts on the aquatic reserve,” Goldmark’s statement says.

“I don’t want to say anything is permanent,” Goldmark told Bloomberg BNA in a Jan. 4 interview. “But my action yesterday is the right thing to do for the health of Puget Sound given the Lummi’s treaty rights and given the fact that we have to continually work to provide more habitat for species that are endangered.”

Goldmark’s ruling on Cherry Point takes on added significance in that it would make it more difficult for any port project to get approval, including if the Gateway terminal developers prevail in an appeal or resubmit a modified proposal.

Precluding Piers

Whatcom County, home of the Gateway terminal site at Cherry Point, is considering using legal authorities similar to those deployed in Portland to further preclude the Gateway terminal developer or any other fossil fuel facility from siting there.

“It’s one of the last deep-water ports left undeveloped on the West Coast of the U.S., so it’s a target zone” for potential use as a oil export terminal, Whatcom County Council member Carl Weimer told Bloomberg BNA in a Dec. 22 interview. Weimer has proposed amendments to the county comprehensive land use plan that would prohibit adding any more industrial docks at Cherry Point.

Governors Committed to Action

Inslee and the governors of California and Oregon have repeatedly said the outcome of the Nov. 8 election and Republican led congressional efforts to rollback federal climate policies will not deter their efforts to build sustainable, low-carbon economies.

At the state level, all three governors are pursuing climate policies.

Inslee’s budget calls for levying a new tax on carbon pollution. The Republican-controlled State Senate is likely to block the tax. The governor, however, has some big time bargaining chips, including major water infrastructure projects in Republican-dominated portions of the state that the tax would fund.

Washington’s governor has also issued executive actions, such as as a Clean Air Rule that requires the state’s largest greenhouse gas emitters to cap and gradually reduce their emissions.

Oregon is moving toward implementation of a low-carbon fuel standard similar to California’s rules. It calls for importers of transportation fuels to cut average carbon intensity of fuels 10 percent by 2025. Under the standard, providers of clean fuels, like biodiesel, can generate and sell credits to importers. Oregon, which has no refineries, imports fuel from Washington, Utah and California.

California to Do ‘More’

California Gov. Jerry Brown (D) has no plans to back away from his ambitious climate agenda.

“We’re going to continue our efforts, do what we’re doing and do more,” Brown said at a Jan. 10 press briefing on his proposed budget.

The spending plan includes $2 billion in the greenhouse gas emissions reduction fund used for a variety of projects. State law requires 25 percent of the money be spent in disadvantaged communities, but Brown’s appropriation relies on passage of legislation to extend the economy-wide greenhouse gas emissions cap-and-trade program beyond 2020.

The California Air Resources Board is set to release any day a draft strategy to reduce carbon emissions to 40 percent below 1990 levels by 2030; a target included in a bill, S.B. 32, which Brown signed into law last year.

Already on track to achieve its goal to cut emissions to 1990 levels by 2020, CARB’s plan—as previewed in workshops—charts a preferred path of extending the carbon trading program and other existing climate rules. The strategy also relies on the state reaching 50 percent renewable energy by 2030, energy efficiency programs and a suite of new measures including rules targeting methane, black carbon, tougher refinery rules and a stricter low carbon fuel standard.

Key to meeting the 2030 carbon emissions goal and even the state’s long term target—80 percent below 1990 levels by 2050—is the electrification of the transportation sector, CARB Chairman Mary D. Nichols has said. Transportation is the state’s largest source of source carbon emissions.

Clean Air Waivers Important

Transformation of the vehicle fleets requires California to have Clean Air Act waivers from the Environmental Protection Agency to enact stricter than federal requirements.

At a confirmation hearing Jan. 18, Trump’s nominee to head the EPA, Scott Pruitt, would not commit to providing those waivers despite prior comments that state’s have the right to make their own decisions on how to comply with federal law.

“California will continue to lead the world in addressing climate change and advancing clean energy regardless of who is in the White House or at the EPA,” California State Senate President pro Tempore Kevin de Leon (D) said in a written statement. “Mr. Pruitt should get used to that and not try to impose his Oklahoma views on the Golden State.”

The state’s legislative leaders hired former U.S. Attorney General Eric Holder, now at Covington & Burling LLP, to advise on any potential changes in federal law that could impact the state’s policies.

California sued the second Bush administration after it refused to provide a waiver for its first round of vehicle related greenhouse gas emissions standards. The state dropped the lawsuit after President Obama took office and adopted national vehicle fuel economy and emissions standards that aligned with California.

Federal Lands

How the Trump administration handles timber harvesting in national forests and decisions involving renewable energy and oil and gas development on federal lands has implications for California and other the western states, Richard M. Frank, director of the California Environmental Law and Policy Center at the University of California at Davis law school, told Bloomberg BNA Jan. 12.

“That’s where the Trump administration can have an impact on more than the regulatory side,” Frank said. The federal government also has exclusive authority over offshore oil development, outside of the state’s three mile coastal boundary, he said.

California will work with other cities, states and jurisdictions through the Under2 Coalition, the state and Baden-Wurttemberg, Germany formed to fight climate change, Brown said at Jan. 10 press event in Sacramento. At least 165 jurisdictions (cities, states, provinces and countries), including Oregon and Washington, around the globe have joined the coalition and committed to reduce greenhouse gas emissions.

“We’re looking to the rest of the world to join the coalition,” Brown said. “The science is not going to change.”

“I’m very optimistic that what’s going on in Washington is just a pause,” he said. “Whatever happens we’re going to deal with it.”

To contact the reporters on this story: Paul Shukovsky in Seattle at PShukovsky@bna.com; Carolyn Whetzel in Los Angeles at CWhetzel@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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