This opinion was filed for record
at 8()() OJl\ on NoreLl~ VJ n
dtw~Ow.
SUSAN L. CARLSON
-
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
COLUMBIA RIVERKEEPER, and )
NORTHWEST ENVIRONMENTAL )
DEFENSE CENTER, ) No. 92335-3
)
Petitioners, )
) ENBANC
SIERRA CLUB, )
)
Plaintiff, )
v. ) FILED March 16, 2017
)
PORT OF VANCOUVER USA; )
JERRY OLIVER, Port ofVancouver )
USA Board of Commissioners )
President; BRIAN WOLFE, Port of )
Vancouver USA Board of )
Commissioners Vice President and )
NANCY I. BAKER, Port of )
Vancouver USA Board of )
Commissioners Secretary, )
)
Respondents. )
------)
FAIRHURST, C.J.---This case involves a dispute about how the regulatory
schemes of the State Environmental Policy Act (SEPA), chapter 43.21 C RCW, and
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
the energy facilities site locations act (EFSLA), chapter 80.50 RCW, apply to a lease
agreement between respondents, the Port of Vancouver USA and its board of
commissioners 1 (Port), and Tesoro Corporation and Savage Companies (hereinafter
Tesoro). The lease agreement permits Tesoro to construct a petroleum based energy
facility on the Port's property. The agreement remains contingent on review by, and
certification from, the Energy Facility Site Evaluation Council (EFSEC), the primary
decision-making authority in the field of energy facilities siting and regulation under
EFSLA.
EFSLA incorporates by reference numerous regulations from SEP A,
including WAC 197-11-714(3) and -070(1)(b) which preclude agencies "with
jurisdiction" from taking actions that would "[l]imit the choice of reasonable
alternatives" prior to the issuance of an environmental impact statement (EIS). The
Port entered into the lease agreement with Tesoro prior to EFSEC's issuance of an
EIS. Columbia Riverkeeper, Sierra Club, and Northwest Environmental Defense
Center (hereinafter Riverkeeper) sued the Port, alleging, inter alia, that the lease
agreement limited the choice of reasonable alternatives available to the Port, thereby
violating SEP A.
1 In addition to the Port itself, the original lawsuit named as defendants Jerry Oliver, Brian
Wolfe, and Nancy Baker in their official capacities as Port ofVancouver commissioners. For ease
of reference, we refer to all respondents collectively as "Port."
2
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
On summary judgment, the trial court dismissed Riverkeeper's SEPA claims
in favor of the Port, holding that the contingencies contained within the lease
preserved reasonable alternatives available to the Port. The Court of Appeals
affirmed, concluding that the lease did not violate SEPA, although it did so by
finding WAC 197-11-070 and its "reasonable alternatives" provision applied only
to EFSEC and the governor, rather than the Port, and the lease did not limit EFSEC 's
or the governor's choices of "reasonable alternatives." Columbia Riverkeeper v.
Port of Vancouver USA, 189 Wn. App. 800, 817, 357 P.3d 710 (2015), review
granted, 185 Wn.2d 1002, 366 P.3d 1243 (2016).
In assessing the Port's compliance with SEPA, we must address the question
whose reasonable alternatives cannot be limited? We affirm the holding ofthe Court
of Appeals. The Port's lease with Tesoro does not violate SEPA. But we do so on
the trial court's grounds. WAC 197-11-070 applies to all agencies with authority to
"approve, veto, or finance all or part" of a project, which includes the Port. WAC
197-11-714(3). Because the Port's lease is subject to the condition precedent that
EFSEC and the governor approve the project, inclusive of EFSLA's stated
environmental priorities and EFSEC's environmental review function, and the Port
retains mutual authority to approve development, construction, and operations plans
for the facility, the Port did not violate WAC 197-11-070 when it entered into the
lease prior to EFSEC's completion of an EIS.
3
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Factual background
In October 2013, the Port entered into a lease agreement with Tesoro. The
agreement permits Tesoro to construct a petroleum based energy facility on the
Port's property along the Columbia River that would be capable of receiving by train
up to 360,000 barrels of crude oil per day. The terminal could also store up to two
million barrels of crude oil or other petroleum products in above ground tanks. The
facility would store and blend petroleum products before loading them for shipment
by rail or by marine vessel via the Columbia River.
The lease contains a preliminary, but comprehensive, description of the
facility. The Port and Tesoro must mutually approve final "specifications and
designs ... for the development, construction, and operation of the Facility" and
"work diligently and in good faith" to finalize the plans. Clerk's Papers (CP) at 288-
89. According to the lease, Tesoro may not occupy or develop the property until
Tesoro has obtained "all necessary licenses, permits and approvals . . . for the
Permitted Use," which necessarily includes EFSEC certification. CP at 288. If "any
or all of the conditions precedent" noted above are not satisfied, either party may
terminate the lease. CP at 281, 288.
Tesoro initiated the energy site certification process by contacting EFSEC and
informing it of the facility plans. EFSEC determined that the energy facility would
4
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
likely have a significant adverse impact on the environment, which necessitated
completion of an EIS pursuant to RCW 43.21C.030(2)(c). In its Determination of
Significance Scoping Notice, EFSEC designated itself as the lead SEPA agency for
preparing the EIS. CP at 170. The Determination of Significance Scoping Notice
also scheduled the initial SEPA hearings to begin on October 28 and 29, 2013,
approximately one week after the Port and Tesoro executed the lease. CP at 169.
When this case began, the SEP A environmental analysis was ongoing.
B. Procedural history
Riverkeeper initially brought suit against the Port on October 2, 2013, alleging
that the Port had excluded the public from deliberations concerning the lease and
thereby violated the Open Public Meetings Act of 1971 (OPMA), chapter 42.30
RCW. After the Port and Tesoro executed the lease, Riverkeeper amended the
complaint to include two SEP A violations. First, Riverkeeper complained that the
Port violated SEPA because it executed the lease prior to completion of the EIS.
Second, Riverkeeper alleged that the Port's execution of the lease constituted an
"action" under SEP A, and that the "action" limited the choice of reasonable
alternatives before the completion of the EIS in violation of WAC 197-11-070. CP
at 14-15. In all, the amended complaint included six claims.
The Port moved for summary judgment on all six claims. The trial court
dismissed both SEPA claims, but reserved judgment on the four OPMA claims
5
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
pending additional discovery. On the first SEP A claim, the trial court reasoned that
the Port did not violate SEP A because under EFSLA, the lease was exempt from the
EIS requirement. On the second SEP A claim, the trial court concluded the
contingencies in the lease guaranteed that it did not limit the reasonable alternatives
under SEPA. 2 CP at 991. The trial court also found the SEPA claims were of
"substantial public importance" and granted Riverkeeper' s CR 54(b) motion for
immediate appeal. CP at 1016.
In a unanimous published opinion, the Court of Appeals affirmed the trial
court's summary judgment decision. Riverkeeper, 189 Wn. App. at 800. As to the
first SEP A claim, like the trial court, the Court of Appeals found that there was no
SEP A violation because EFSLA exempts the lease from the EIS requirement. I d. at
813. Regarding the second SEPA claim, the Court of Appeals, in departing from the
trial court's grounds, ruled that when a project, like the one at issue, is subject to
EFSLA, SEP A precludes only actions that limit the reasonable alternatives available
to EFSEC and the governor. Id. at 817-18. Whether the Port's reasonable alternatives
were limited by entering into the lease was, therefore, "immaterial" to the Court of
Appeals. Id. at 818.
2
Riverkeeper does not challenge the trial court's ruling inasmuch as it found that the lease
did not limit EFSEC's choice of reasonable alternatives but contends only that the lease limited
the Port's choice of reasonable alternatives.
6
Colum~ia Riverkeeper v. Port of Vancouver, No. 92335-3
The Court of Appeals reached this holding by first concluding the regulations
under SEP A and EFSLA were in conflict and, as a result, the SEP A regulation at
issue-WAC 197 -11-070(1 )(b?-did not unambiguously provide which agency's
alternatives cannot be lir~1ited.Jd. at 816. It went on to resolve the ambiguity through
application of the general-specific rule. The court held that EFSLA, as the more
specific regime, applied. I d. at 817. And because EFSLA vested discretion solely
within the governor and EFSEC, WAC 197-ll-070(1)(b) limited only the
alternatives ofEFSEC and the governor.Jd. at 816-18.
Now, only Columbia Riverkeeper and Northwest Environmental Defense
Center appeal, and they do so on just the second SEP A claim-whether the Port
violated WAC 197-11-070 by entering into the lease prior to EFSEC' s issuance of
an EIS because the lease limits the Port's reasonable alternatives. We granted the
petition for review. Riverkeeper, 185 Wn.2d at 1002.
II. ISSUES
A. Do SEP A and EFSLA regulations conflict?
B. Does WAC 197-11-070(1)(b) apply to the Port?
3
WAC 197-11-070 reads in relevant part:
(1) Until the responsible official issues a final determination of nonsignificance or
final environmental impact statement, no action concerning the proposal shall be
taken by a governmental agency that would:
(b) Limit the choice of reasonable alternatives.
7
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
C. Does the conditions precedent clause and the Port's retained mutual
approval authority within the lease satisfy the Port's obligation under the
regulation's "reasonable alternatives" provision?
III. ANALYSIS
"We review the propriety of summary judgment rulings de novo, viewing the
facts in the light most favorable to the nonmoving party. Summary judgment is
proper when there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter oflaw." Save Our Scenic Area v. Skamania County,
183 Wn.2d 455, 463, 352 PJd 177 (2015). Neither party contends a genuine issue
of material fact remains. At issue is the interpretation of WAC 197-11-070(1)(b) and
its application to the lease between the Port and Tesoro.
Statutory and regulatory interpretation is a question oflaw that we also review
de novo. Jametsky v. Olsen, 179 Wn.2d 756, 761-62, 317 PJd 1003 (2014) (citing
Dep 't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 PJd 4 (2002));
City ofSeattle v. Burlington N. R.R. Co., 145 Wn.2d 661, 665, 41 P.3d 1169 (2002).
We interpret administrative regulations using rules of statutory construction.
Overlake Hasp. Ass 'n v. Dep 't of Health, 170 Wn.2d 43, 51, 239 PJd 1095 (2010)
(citing City ofSeattle v. Allison, 148 Wn.2d 75, 81,59 PJd 85 (2002)). The purpose
of our inquiry is to determine legislative intent and interpret the statutory provisions
in such a way so as to carry out that intent. Jametsky, 179 Wn.2d at 762. If possible,
8
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
we give effect to the plain meaning of the statute as a pronouncement of legislative
intent. !d. When attempting to ascertain a statute's plain meaning, we may consider
the "context of the entire act as well as any 'related statutes which disclose legislative
intent about the provision in question.'" !d. (quoting Campbell & Gwinn, 146 Wn.2d
at 11).
If a statute is subject to more than one reasonable interpretation, we consider
it ambiguous. !d. (citing City of Seattle v. Winebrenner, 167 Wn.2d 451, 456, 219
P.3d 686 (2009)). After determining that a statute is ambiguous, "we 'may resort to
statutory construction, legislative history, and relevant case law for assistance in
discerning legislative intent."' !d. (quoting Christensen v. Ellsworth, 162 Wn.2d
365, 373, 173 P.3d 228 (2007)).
A. SEP A and EFSLA regulations do not conflict
1. SEP A provides decision makers with the environmental impacts of
proposed actions
The legislature enacted SEP A in 1971 to inject environmental consciousness
into governmental decision-making. See WAC 197-11-714(1). SEPA was intended
(1) [t]o declare a state policy which will encourage productive and
enjoyable harmony between humankind and the environment; (2) to
promote efforts which will prevent or eliminate damage to the
environment and biosphere; (3) and [to] stimulate the health and
welfare of human beings; and (4) to enrich the understanding of the
ecological systems and natural resources important to the state and
nation.
9
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
RCW 43.21C.010 (alteration in original). SEPA expressly acknowledges that "each
person has a fundamental and inalienable right to a healthful environment and that
each person has a responsibility to contribute to the preservation and enhancement
ofthe environment." RCW 43.21C.020(3). SEPA's primary focus is on the decision-
making process. 24 WASHINGTON PRACTICE: ENVIRONMENTAL LAW AND PRACTICE
§ 17.1, at 192 & n.8 (2d ed. 2007) (citing Save Our Rural Env 'tv. Snohomish County,
99 Wn.2d 363, 662 P.2d 816 (1983)). As such, SEPA seeks to ensure that
environmental impacts are considered and that decisions to proceed, even those
completed with the knowledge oflikely adverse environmental impacts, be "rational
and well-documented." !d. at 192.
SEP A requires that agencies complete an EIS prior to undertaking "major
actions significantly affecting the quality of the environment." RCW
43.21C.030(2)( c). The EIS is to be completed by the "responsible official" 4 and must
include
(i) the environmental impact of the proposed action;
(ii) any adverse environmental effects which cannot be avoided
should the proposal be implemented;
(iii) alternatives to the proposed action;
(iv) the relationship between local short-term uses of the
environment and the maintenance and enhancement of long-term
productivity; and
4 '"Responsible official' means that officer or officers, committee, department, or section
of the lead agency designated by agency SEP A procedures to undertake its procedural
responsibilities as lead agency (WAC 197-11-910)." WAC 197-11-788.
10
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
(v) any irreversible and irretrievable commitments of resources
which would be involved in the proposed action should it be
implemented.
!d.
Often, environmental review requires input from many different agencies. See
WAC 197-11-420 (contemplating input from multiple sources). To prevent
piecemeal decision-making and to ensure continuity in environmental review, SEP A
regulations designate a lead agency to complete each EIS. WAC 197-11-050; see
also Int'l Longshore & Warehouse Union, Locall9 v. City ofSeattle, 176 Wn. App.
512, 519-20,309 P.3d 654 (2013) (citing State v. Grays Harbor County, 122 Wn.2d
244, 250-51, 857 P.2d 1039 (1993)). According to the SEPA regulations, "[t]he lead
agency shall be the agency with main responsibility for complying with SEP A's
procedural requirements and shall be the only agency responsible for . . . (b)
[p]reparation and content of [EISs]." WAC 197-11-050(2). When the governmental
action concerns energy facilities requiring EFSLA certification, the SEP A
regulations designate EFSEC as the lead SEPA agency. See WAC 197-11-938(1 ).
SEP A also prohibits agency action that would adversely affect the
environment until the lead agency's EIS can fully inform that action. Specifically,
WAC 197 -11-070( 1) does so by providing that"[ u]ntil the responsible official issues
a final determination of nonsignificance or final [EIS], no action concerning the
proposal shall be taken by a governmental agency that would ... (b) [l]imit the
11
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
choice of reasonable alternatives." Interpretation of this provision is at issue in this
case.
2. EFSLA seeks to minimize the environmental impact of energy projects
Our legislature promulgated EFSLA to provide "an expedited and centralized
process for reviewing potential energy facility sites in Washington State." Friends
of Columbia Gorge, Inc. v. State Energy Facility Site Evaluation Council, 178
Wn.2d 320, 328, 310 P.3d 780 (2013). With its enactment ofEFSLA, the legislature
sought to balance environmental concerns with the pressing need for increased
energy facilities. RCW 80.50.01 0. As part of this balance, the legislature meant "[t]o
avoid costly duplication in the siting process and ensure that decisions are made
timely and without unnecessary delay," which it accomplished by vesting EFSEC
with exclusive jurisdiction over the certification, location, construction, and
operation of energy facilities meeting certain size requirements. 5 RCW
80.50.010(5), .110(2).
Pursuant to statutory directive, EFSEC must include a chair appointed by the
governor with the advice and consent of the senate; representatives from the
5 Tesoro's proposed energy facility would be capable of receiving 500,000 barrels of crude
oil per day. EFSLA grants EFSEC exclusive jurisdiction over any energy facility "which will have
the capacity to receive more than an average of fifty thousand barrels per day of crude or refined
petroleum or liquefied petroleum gas which has been or will be transported over marine waters."
RCW 80.50.020(12)(d). Neither party disputes that the proposed facility is subject to EFSLA or
that an EIS must be completed by EFSEC prior to the governor's final approval.
12
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
Department of Ecology, the Department of Fish and Wildlife, the Department of
Commerce, the Utilities and Transportation Commission, and the Department of
Natural Resources; a representative from the county, city, or port where the energy
facility is to be sited; and an assistant attorney general representing the interests of
the environment. RCW 80.50.030.
EFSEC's review process begins once it receives a proponent's application.
Friends of Columbia Gorge, 178 Wn.2d at 328-29. EFSEC conducts informational
public hearings in the county of the proposed siting and, following these hearings,
conducts a hearing to ensure the proposal's compliance with land use and zoning
requirements. Id. Consistent with the Administrative Procedure Act, chapter 34.05
RCW, EFSEC conducts a hearing to allow parties to challenge its initial
determinations and may conduct additional hearings as necessary. I d. (citing RCW
80.50.090). Once it has completed these steps, EFSEC submits its recommendation ·
to the governor, and if EFSEC is recommending approval, it includes a draft
certification agreement with its recommendation. ld. The governor then determines
whether to approve the application and execute a site certification agreement, reject
the application, or require EFSEC to reconsider aspects of the application. I d. The
governor's decision to reject the application is final, unless there is new information
or conditions change, warranting a new submission. I d.
13
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
3. SEP A and EFSLA overlap rather than conflict
SEPA and EFSLA reflect the legislature's desire to carefully balance
developmental and environmental concerns. SEPA, recognizing that government
activity will inevitably impact the environment, does not "dictate a particular
substantive result." Save our Rural Env't, 99 Wn.2d at 371. Instead, SEPA's EIS
mandate simply ensures that "environmental matters can be given proper
consideration during decision making." Norway Hill Pres. & Prot. Ass 'n v. King
County Council, 87 Wn.2d 267, 273, 552 P.2d 674 (1976). Similarly, the legislature
enacted EFSLA to "balance the increasing demands for energy facility location and
operation in conjunction with the broad interests of the public." RCW 80.50.010.
Similarly, the policy of EFSLA is not only to expedite and centralize the review
process for energy facility projects, but to promote facilities that "will produce
minimal adverse effects on the environment." !d.
SEP A broadly mandates environmentally sensitive decision-making; EFSLA
focuses on the "discrete and specific function" of certifying new energy facilities.
RCW 43.21C.030; Residents Opposed to Kittitas Turbines v. State Energy Facility
Site Evaluation Council, 165 Wn.2d 275, 309-10, 197 P.3d 1153 (2008).
Overlapping statutes do not necessarily conflict. This is particularly true when SEP A
is involved. This court has previously recognized the legislature intended that SEP A
complement other legal frameworks. Dept. of Nat. Res. v. Thurston County, 92
14
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
Wn.2d 656, 664, 601 P.2d 494 (1979) ("As we have repeatedly pointed out, SEPA
is an overlay of law which supplements existing statutory authority."); Save our
Rural Env 't, 99 Wn.2d at 371 ("SEPA is essentially a procedural statute to ensure
that environmental impacts and alternatives are properly considered by the decision
makers" and "was not designed to usurp local decisionmaking"). In construing
overlapping legislation, courts must read provisions that govern the same subject
matter in pari materia. Residents, 165 Wn.2d at 308. Such statutory schemes must,
when possible, be construed harmoniously. Id.
Further, EFSEC's regulations demonstrate that, like SEPA, EFSLA seeks to
minimize the environmental impacts of development. WAC 463-47-110(1)(a)
declares that "[t]he overriding policy of [EFSEC] is to avoid or mitigate adverse
environmental impacts which may result from [EFSEC's] decisions." EFSEC
regulations further recognize that "each person has a fundamental and inalienable
right to a healthful environment," and instruct EFSEC to ensure that environmental
values "will be given appropriate consideration in decision making." WAC 463-47-
11 0(1 )(c), (d). The fact that EFSEC conducts environmental review under SEP A and
has explicitly adopted SEP A into its own regulations further supports the
compatibility of the statutory regimes. WAC 463-14-080(3); WAC 463-47-020, -
030. EFSEC itself serves as the SEPA lead agency responsible for completing the
EIS. WAC 463-47-090(1). Nor does EFSLApreempt or otherwise eliminate SEPA's
15
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
requirements for another "'[a]gency with jurisdiction,"' which is an agency with
"authority to approve, veto, or finance all or part" of a project, to comply with SEPA.
WAC 197-11-070, -714(3 ). EFSEC simply serves as the lead agency for purposes
of EIS preparation.
B. WAC 197-11-070(1)(b) unambiguously applies to the Port
The Court of Appeals found, based on its perception that SEPA and EFSLA
regulations were in conflict, that WAC 197-11-070(1 )(b) was ambiguous and, based
on that ambiguity, the regulation could be interpreted as not applying to the Port.
Riverkeeper, 189 Wn. App. at 816-18. We reverse this holding. There is no
ambiguity in the regulation, and on its face, it applies to the Port.
The regulation applies to any (1) "governmental agency" (2) capable of taking
"action" (3) "[l]imit[ing] the choice of reasonable alternatives." WAC 197-11-
070(1 )(b). An "agency" is defined as "any state or local governmental body ...
authorized to ... take the actions stated in WAC 197-11-704."6 WAC 197-11-
714(1). The Port is an agency for these purposes. Further, neither party disputes that
by entering into the lease agreement with Tesoro, the Port took action. A "reasonable
alternative"
6 WAC 197-11-704(1 )(a) defines "actions" as "[n]ew and continuing activities (including
projects and programs) entirely or partly financed, assisted, conducted, regulated, licensed, or
approved by agencies."
16
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
means an action that could feasibly attain or approximate a proposal's
objectives, but at a lower environmental cost or decreased level of
environmental degradation. Reasonable alternatives may be those over
which an agency with jurisdiction has authority to control impacts,
either directly, or indirectly through requirement of mitigation
measures.
WAC 197-11-786 (emphasis added). If the purpose of the regulation is to preserve
reasonable alternatives, then it must apply to entities with power over those
alternatives, or in other words, an '"[a]gency with jurisdiction."' WAC 197-11-
714(3 ). By this definition, the Port is an agency with jurisdiction. WAC 197-11-786.
The legislature empowered the Port to determine whether, and under what
terms, to lease public property under its control. See RCW 53.08.080 ("A [Port] may
lease all lands ... owned and controlled by it, for such purposes and upon such terms
as the port commission deems proper."). This statutory authority grants the Port de
facto approval and veto power over any proposal to be sited on the Port's land. These
are the exact qualities of an agency with jurisdiction. Further, all of the SEP A
regulations described above are incorporated by reference into EFSLA regulations.
WAC 463-47-020. Therefore, WAC 197-11-070(1)(b) unambiguously applies to the
Port.
In holding otherwise, the Court of Appeals relies on Residents, which
involved a conflict between EFSLA and the Growth Management Act (GMA),
chapter 36. 70A RCW. 165 Wn.2d at 284-85. At issue in that case were dueling
17
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
preemption clauses: the GMA instructs state agencies to comply with "local
comprehensive plans and development regulations," RCW 36.70A.103, while
EFSLA grants EFSEC the power to supersede local zoning and licensing
requirements, RCW 80.50.110(2). As a result, this court read EFSLA as a "specific
exception to the general goals and procedures of the GMA" and affirmed EFSEC's
preemption authority. Residents, 165 Wn.2d at 310.
The conflict between EFSLA and the GMA that this court addressed in
Residents is not present here. As already discussed, SEP A and EFSLA are both
designed to advance similar goals-minimizing environmental harm. See ASARCO,
Inc. v. Air Quality Coal., 92 Wn.2d 685,710-11,601 P.2d 501 (1979) (holding there
is no conflict between SEP A and the Washington Clean Air Act because both
statutes are designed to prevent ecological damage and reconciling the statutes to
further "the strong policy behind both [schemes]"). The legislature specifically
intended SEPA to supplement, rather than replace, Washington's existing laws.
RCW 43.21C.060 ("The policies and goals set forth in this chapter are
supplementary to those set forth in existing authorizations of all branches of
government of this state .... ").Furthermore, Residents was premised on conflicting
preemption provisions, which is not the case here-EFSLA has specifically adopted
SEPA into its own regulations. WAC 463-47-020.
18
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
The purpose of EFSEC is to oversee site certification procedures, ensure
compliance with SEPA's environmental review requirements, and make a
certification recommendation to the governor. Residents, 165 Wn.2d at 285. As the
SEPA lead agency, EFSEC is also responsible for preparing the EIS. These
combined responsibilities ensure EFSEC evaluates all reasonable alternatives to the
proposed energy facility. WAC 463-47-090(1); WAC 197-11-440. The regulation
at issue in this case, WAC 197-11-070(1)(b), prevents EFSEC or other agencies with
jurisdiction from eliminating alternate designs before they can be properly
evaluated.
Further, EFSLA's preemption clause, by its own terms, does not apply to the
statutory source of the Port's SEPA status. EFSLA preempts only regulation and
certification matters relating to energy facility sites, such as local land use rules.
RCW 80.50.110. This serves to reduce construction delay; site certification, once
obtained, is the only license necessary to construct and operate the project. RCW
80.50.120(3). By contrast, the Port's SEPA status is derived from its authority to
lease public lands under its control. See RCW 53.08.080. The Port's leasing power
is distinguishable from the land use regulations and zoning rules that EFSLA
preempts. See Residents, 165 Wn.2d at 308. The Port's power to lease is outside the
scope of EFSLA and therefore should not be preempted by it. To hold otherwise
invites an absurd result-armed with an EFSLA certification, a project applicant
19
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
could build and operate an energy facility on the Port's land without ever consulting
the Port or obtaining its consent.
The logic of this analysis is straightforward-examine the practical effect of
applying WAC 197-11-070(1 )(b) to the Port. If preventing the Port from limiting
its own reasonable alternatives somehow interferes with EFSEC's ability to meet its
SEP A obligations under SEPA as the lead agency, or its EFSLA obligations as the
agency making a recommendation to the governor, it would be reasonable to find
that WAC 197-ll-070(1)(b) should not apply to the Port. But no such interference
is apparent. To the extent that EFSLA divests the Port of its role under SEPA, it does
so only as it relates to EFSEC's review and resulting recommendation to the
governor regarding site certification. EFSLA's delegation of power to EFSEC does
not exempt the Port from the entirety of SEPA. Similarly, it does not empower the
Port to make environmentally significant decisions without the benefit of
environmental review.
EFSEC's designation as lead agency for SEPA environmental review
purposes does not liberate any other governmental body from complying with
SEPA's fundamental mandate to make environmentally informed decisions. While
EFSEC and the governor unquestionably have broad discretion over the energy
facility siting process, Friends of Columbia Gorge, 178 Wn.2d at 334, the Port alone
has plenary authority to determine whether to lease public property under its control,
20
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
RCW 53.08.080. This decision is independently subject to SEPA and must await
the lead agency's analysis of environmental impacts and reasonable alternatives.
WAC 197-11-070(1)(b).
C. The conditions precedent clause and the mutual approval provision in the
Tesoro lease satisfies the Port's obligations under WAC 197-11-070(1)(b)
The Port must ensure it does not limit its choice of "reasonable alternatives"
before EFSEC's environmental review is complete. WAC 197-11-070(1)(b). But
reasonable alternatives, for this purpose, are limited. Only those actions that could
"feasibly attain or approximate a proposal's objectives, but at a lower environmental
cost or decreased level of environmental degradation" are "[r]easonable
alternatives" that the Port, EFSEC, and the governor cannot limit until the EIS is
issued. WAC 197-11-786. The Port satisfies this requirement through a combination
of the condition precedent and its retained mutual approval authority contained
within its lease with Tesoro.
The lease precludes occupancy or development of the property until the
following condition precedent has been satisfied: Tesoro has obtained "all necessary
licenses, permits and approvals ... for the Permitted Use," which necessarily
includes EFSEC certification. CP at 288. If the condition precedent is not satisfied,
either party may terminate the lease. The Port also retains the authority, in
conjunction with Tesoro, to "approve ... construction plans, specifications and
21
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
designs ... for the development, construction, and operation of the Facility." CP at
288-89.
Riverkeeper asserts the condition precedent does not allow the Port to change
lease terms based solely on results of the EIS, nor does the reservation of mutual
authority to approve plans, specifications, and designs satisfy the Port's obligation
under WAC 197-11-070(1)(b). Riverkeeper further argues that the lease's
description of permitted uses limits consideration of alternative designs. Finally,
Riverkeeper cautions us that "'snowballing"' inertia generated by the lease
agreement effectively forecloses full consideration of the Port's alternative
possibilities. Riverkeeper, 189 Wn. App. at 818.
But as the Court of Appeals discussed, the governor will ultimately decide
whether to certify the project based on EFSEC's recommendation. Id. at 820. And
EFSEC's recommendation, informed by the results of the EIS, must be consistent
with "[t]he overriding policy of [EFSEC] . . . to avoid or mitigate adverse
environmental impacts" and consistent with the principle that "each person has a
fundamental and inalienable right to a healthful environment." WAC 463-47-
110(1)(a), (c). In addition, both EFSEC and the governor remain subject to the
reasonable alternatives requirement of WAC 197 -11-090(1 )(b) themselves.
Therefore, they must consider whether the proposed certification is the most likely
22
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
alternative to feasibly attain or approximate the Port's lease objectives at the lowest
environmental cost or level of environmental degradation. WAC 197-11-786.
If EFSEC or the governor believe that the project does not meet EFSEC's
overriding goal of avoiding or mitigating adverse impacts, as informed by the
reasonable alternative analysis contained within the resulting EIS pursuant to WAC
197 -11-440( 5), they may withhold approval outright, or grant approval contingent
on changes to the lease. Similarly, the Port's retained mutual approval authority to
modify the development, construction, and operational plans of the facility ensures
the Port retains broad authority to make adjustments as the project proceeds.
The condition precedent contained within the lease, coupled with EFSEC's
recommendation based on its environmental priorities, the governor's discretion to
certify the project, and the Port's reserved mutual approval authority ensures
"'[r]easonable alternative[s]"' for the Port, as defined in WAC 197-11-786, are
preserved. The dissent acknowledges the sweeping effect of the condition precedent,
noting that it goes so far as to "allow[] either party to back out of the project in the
event that EFSLA certification is refused," dissent at 10, yet it still finds the
provision insufficient to ensure reasonable alternatives remain available to the Port.
We disagree. The lease language plainly preserves the Port's ability to shape the
final project in response to environmental review, for example by adopting
23
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
additional mitigation measures, heightened insurance requirements, or modifying
project specifications. This preserves reasonable alternatives.
Further, as the Court of Appeals notes, while inertia may be a concern if the
project decision was solely at the discretion of the Port, the lease is contingent on
EFSEC's, and ultimately the governor's, acquiescence, neither of whom are subject
to the inertia articulated by Riverkeeper for the Port. The dissent similarly raises the
inertia argument, but the cases it cites are inapposite. Unlike the lease agreement at
issue here, the cases the dissent cites address the adequacy of completed
environmental review. See King County v. Wash. State Boundary Review Bd., 122
Wn.2d 648, 664, 860 P.2d 1024 (1993) (challenging a determination of
nonsignificance); Barrie v. Kitsap County, 93 Wn.2d 843, 857,613 P.2d 1148 (1980)
(challenging the alternatives included in an EIS); Weyerhaeuser v. Pierce County,
124 Wn.2d 26, 41, 873 P.2d 26 (1994) (same). We have not yet reached that point
here. If Riverkeeper finds the resulting EIS inadequate, for similar reasons as in the
cases cited by the dissent, it may wish to consider challenging the adequacy of the
EIS. But the cases cited by the dissent do not provide us a basis to invalidate the
current lease agreement, irrespective of the results of environmental review.
Finally, Riverkeeper's permitted uses argument is unpersuasive. The lease
requires the consent of the Port for any use outside of those permitted by the lease.
CP at 296. The provision does not limit the Port's discretion.
24
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
IV. CONCLUSION
We hold that regulations under SEP A and EFSLA do not conflict. As a result,
WAC 197 -11-070( 1)(b) unambiguously applies to the Port. In addition, the
conditions precedent and mutual approval authority provisions in the Port's lease
agreement with Tesoro, when coupled with EFSEC's certification criteria and the
governor's discretion, ensure the lease does not constrain the reasonable alternatives
available to the Port. Therefore, the Port's execution of the lease did not violate
SEPA.
We affirm the Court of Appeals, but do so on the trial court's grounds.
25
Columbia Riverkeeper v. Port of Vancouver, No. 92335-3
WE CONCUR:
~~"-~ ~-~- . C2. .....,._____,,~~-------
. 26
Columbia Riverkeeper v. Port ofVcmcouver USA, et al.
No. 92335-3
STEPHENS, J. (dissenting)-We agree with the majority that WAC 197-11-
070(1 )(b) is unambiguous and clearly applies to the Port of Vancouver. By virtue
of its leasing authority, the Port is an "agency with jurisdiction," WAC 197-11-786,
and required to comply with WAC 197-11-070(1)(b). We also agree that the State
Environmental Policy Act (SEPA), chapter 43.21 C RCW, and the energy facilities
site locations act (EFSLA), chapter 80.50 RCW, are not in conflict. Because SEPA
and EFSLA are overlapping but complementary statutory schemes, the Port, the
Energy Facility Site Evaluation Council (EFSEC), and the governor are all subject
to both EFSLA's specific requirements and SEPA's broader mandates. EFSLA
neither generally preempts SEP A nor "empower[ s] the Port to make environmentally
significant decisions without the benefit of environmental review." Majority at 20.
Columbia Riverkeeper v. Port of Vancouver USA, eta!., 92335-3 (Stephens, J., dissenting)
Having acknowledged these truths, however, the majority's conclusion that
the Port did not violate SEPA is untenable. SEPA mandates that governmental
agencies be informed of the likely environmental consequences of their decisions
before making them. WAC 197-ll-070(1)(b) implements this mandate by
prohibiting agencies from restricting reasonable alternatives to a proposal before
environmental review is complete. Here, the Port signed a binding commercial
lease, committing itself to the version of the project articulated therein. This
necessarily restricted reasonable alternatives. Neither the lease negotiations nor the
Port's decision to sign benefitted from the necessary environmental review. Because
SEPA requires more, we respectfully dissent.
ANALYSIS
A. The Port Violated SEPA By Limiting Reasonable Alternatives to the Tesoro
Project prior to Environmental Review
The legislature enacted SEPA with the clear aim of injecting environmental
awareness into all levels of governmental decision making. Polygon Corp. v. City
of Seattle, 90 Wn.2d 59, 63-64, 578 P.2d 1309 (1978). To achieve this goal, SEPA
requires government agencies to study the likely environmental impacts of their
proposals before taking action. RCW 43.21C.030. SEPA's primary tool for
implementing this mandate is the environmental impact statement (EIS): for every
action likely to "significantly affect[] the quality of the environment," SEPA requires
-2-
Columbia Riverkeeper v. Port of Vancouver USA, et al., 92335-3 (Stephens, J., dissenting)
the designated lead agency to prepare a "detailed statement" 1 assessmg the
proposal's foreseeable impacts. Id. at (2)(c). The purpose of the EIS is to ensure
that a "full consideration of environmental impacts" informs governmental decision
making. Polygon Corp., 90 Wn.2d at 63; King County. v. Wash. State Boundary
Review Bd., 122 Wn.2d 648, 659, 860 P.2d 1024 (1993). In short, the EIS is the
"vector" by which SEPA integrates its policies and requirements into the thoughts
and actions of state and local agencies. See RICHARD L. SETTLE, THEWASHINGTON
STATE ENVIRONMENTAL POLICY ACT§ 14.01, at 14-6 (2016).
If the EIS is to actually inform the decision-making process-rather than
rubber-stamping a predetermined outcome-it must be available before key
decisions are made. The EIS "must be prepared early enough to inform and guide
decisionmakers rather than rationalize or justify decisions already made." I d. at 14-6
to 14-7 & n.34 (citing Barrie v. Kitsap County, 93 Wn.2d 843, 613 P.2d 1148
(1980)). This court has cautioned against delaying EIS preparation to the point
where proponent agencies become internally committed: "[T]he risk of postponing
environmental review is 'a dangerous incrementalism where the obligation to decide
is postponed successively while project momentum builds."' King County, 122
1An EIS is a "detailed statement" describing the environmental impact, adverse
environmental effects, and any mitigation measures or alternatives relevant to a proposed
action. RCW 43.21C.030(2)(c); WAC 197-11-440.
-3-
Columbia Riverkeeper v. Port of Vancouver USA, et al., 92335-3 (Stephens, J., dissenting)
Wn.2d at 664 (quoting William H. Rodgers, The Washington Environmental Policy
Act, 60 WASH. L. REv. 33, 54 (1984)). When an agency commits significant time
and resources to detailed project planning, the action "can 'snowball' and acquire
virtually unstoppable administrative inertia." Jd. To avoid this, "decisionmakers
need to be apprised of the environmental consequences before the project picks up
momentum, not after." Jd. 2
The scope ofreview is equally crucial to implementing SEPA's mandate. In
order to effectively inform decision-making, it is not enough for an EIS to be
timely-it must also be useful. The EIS should educate decision-makers on the
likely environmental consequences of the action as well as highlight "reasonable
alternatives" to the proposal. WAC 197-11-440 (EIS contents); WAC 197-11-786
(defining "reasonable alternatives"). It is difficult to overstate the importance of
reasonable alternatives to achieving SEPA's underlying policy goals, which seek to
balance the needs of the environment with the inevitability of development. See
RCW 43.21C.010(1)-(4). 3 By explaining how the action agency can achieve its
2
The importance of early review is reflected in SEPA's rules. See, e.g., WAC 197-
11-400(4), -402(8)-(10), -406. This is to "emphasize that the purpose of the EIS is more
than mere disclosure, rationalization or justification; it is to be used by agency officials in
making decisions on proposed actions." SETTLE, supra, at 14-6.
3
The legislature enacted SEPA to encourage "harmony between humankind and the
environment" by pursuing projects that will "stimulate the health and welfare of human
beings" while also "promot[ing] efforts which will prevent or eliminate damage to the
environment." RCW 43.21C.010(1)-(3).
-4-
Columbia Riverkeeper v. Port of Vancouver USA, et al., 92335-3 (Stephens, J., dissenting)
project objectives at a lower environmental cost, the discussion of reasonable
alternatives in the EIS carries out SEPA's core policy in the form of practical advice.
Understood in this context, the importance of the regulation designed to
preserve reasonable alternatives becomes clear. WAC 197 -11-070(1 )(b) prohibits
any "governmental agency" from taking "action" that would "[l]imit the choice of
reasonable alternatives." Id. The regulation ensures timely environmental review
by restricting the number of decisions that can be made pre-EIS, effectively
"freezing" proposal development early in the project life cycle. WAC 197 -ll-
070(1)(b) also supports EIS quality and utility. Without this rule, EFSEC could
choose to evaluate only its preferred alternatives and ignore the rest. It might also
discard certain alternatives as "unreasonable" if they conflicted with decisions or
commitments that have already been made. The resulting analysis would be less
reliable and correspondingly less useful. See, e.g., Weyerhaeuser v. Pierce County,
124 Wn.2d 26, 41, 873 P.2d 498 (1994) (finding an EIS inadequate for
impermissibly excluding certain reasonable alternatives). If a nonlead agency like
the Port could preemptively restrict the alternatives available for evaluation, the
effect-and result-would be the same.
The majority, without further analysis, cites to the definition in the SEPA
rules: "reasonable alternatives" are "actions that could 'feasibly attain or
-5-
Columbia Riverkeeper v. Port of Vancouver USA, et al., 92335-3 (Stephens, J., dissenting)
approximate a proposal's objectives, but at a lower environmental cost or decreased
level of environmental degradation."' Majority at 21 (quoting WAC 197-11-786).
This is accurate, but unenlightening. It is important to understand exactly what is at
stake in the consideration of reasonable alternatives. Concrete examples provided
in Department of Ecology (DOE) publications and this court's cases are helpful.
DOE guidance explains that "[p]roj ect alternatives might include design alternatives,
location options on the site, different operational procedures, various methods of
reclamation [and] closure options, etc. For public projects, alternative project sites
should also be evaluated." DEPARTMENT OF ECOLOGY, SEPA HANDBOOK§ 3.3.2, at
54 (2003). Similarly, in Weyerhaeuser this court explained that
the alternatives section of the EIS must describe the objectives, proponents
and principal features of reasonable alternatives, including the proposed
action with any mitigation measures ... [and] devote sufficiently detailed
analysis to each alternative so as to permit a comparison of the alternatives.
124 Wn.2d at 41 (further noting that "[t]here must be a reasonably detailed analysis
of a reasonable number and range of alternatives"); see also WAC 197-11-
792(2)(b )(i)(iii) (clarifying that a "[n]o action" alternative and mitigation measures
not discussed in the original proposal should also be included in the analysis).
These examples illustrate what WAC 197 -11-070(1 )(b) requires. In practical
terms, the whole series of project variables-including design specifications, site
location, land reclamation and closure requirements, mitigation measures, etc.-
-6-
Columbia Riverkeeper v. Port of Vancouver USA, et al., 92335-3 (Stephens, J., dissenting)
must remain variables until the EIS is complete. Before that time, if a project agency
acts to eliminate one or more reasonable alternatives in any of these categories, it
violates SEPA.
(1) The Port Limited Reasonable Alternatives to the Tesoro Project by Signing a
Binding Commercial Lease
The terms of the commercial lease signed by the Port and its business partners,
the Tesoro Corporation and Savage Company (collectively Tesoro), concretize many
of the project variables discussed above. With respect to project design, the
"Permitted Use" section specifies project elements and the function of each: a
"Rail/Rack Area" for the loading, unloading, and transfer of petroleum products (and
associated maintenance); "Support Areas" for administrative support; a "Storage
Area," including six 380,000-barrel-capacity tanks and a pipeline connecting to
other areas, for storage and blending of petroleum products; and a "Marine Terminal
Area" transferring petroleum products to and from marine vessels. Clerk's Papers
(CP) at 284, 380 (formatting omitted). In terms of location, the lease gives a nod to
preserving on-site location alternatives, id. at 280, yet unquestionably allows only
one location for the project itself: the Port of Vancouver. !d. at 351-62 (legal
description ofleased area). In the reclamation and closure category, the lease places
Tesoro in charge of conducting an "Exit Contamination Assessment" prior to the
expiration of the lease. !d. at 307-08 (formatting omitted). The lease specifies the
-7-
Columbia Riverkeeper v. Port of Vancouver USA, eta!., 92335-3 (Stephens, J., dissenting)
assessment's timing, the categories of environmental harm to be assessed, and the
criteria by which Tesoro will be held responsible for remediation or cleanup. !d.
Finally, with respect to mitigation, the lease eliminates the possibility that Tesoro
might be required to reduce long-term environmental impact by addressing any
preexisting environmental conditions during its end-of-lease cleanup. !d. The lease
also specifies a relatively modest amount of pollution insurance Tesoro must carry
($25 million), effectively establishing the "mitigation budget" in the event of natural
resources damages from spills, contamination, or explosion. !d. at 285, 316.
These key contract terms limit reasonable alternatives to the Tesoro project.
By signing the lease, the Port committed itself to "work diligently and in good faith"
to bring about the version of the project articulated therein. !d. at 288. Where the
lease provides a framework, any reasonable alternatives inconsistent with that
framework are precluded. See, e.g., id. at 284 ("Permitted Use," describing project
design elements (formatting omitted)). Where the lease is most specific-specifying
the number and capacity of storage tanks, requiring Tesoro to carry exactly $25
million in pollution insurance, etc.-it eliminates all relevant reasonable
alternatives.
-8-
Columbia Riverkeeper v. Port of Vancouver USA, et al., 92335-3 (Stephens, J., dissenting)
SEPA should not be misinterpreted as forbidding project agencies from
articulating any project details prior to environmental review. 4 In fact, SEPA rules
specifically invite agencies to "develop[] plans or designs . . . [as] necessary to
develop an application for a proposal." WAC 197-11-070(4). However, a SEPA
project proposal is neither binding nor final. The Port's actions in this case violated
WAC 197-11-070(1)(b) by committing to project details in a lease that, as the Court
of Appeals correctly recognized, would bind the Port upon certification. See
ColumbiaRiverkeeper v. Port of Vancouver USA, 189 Wn. App. 800, 815, 357 P.3d
710 (2015), review granted, 185 Wn.2d 1002, 366 P.3d 1243 (2016). The lease is
also final: the Port did not reserve any rights to renegotiate the lease's terms. Future
design, construction, and operational choices must be "mutually approve[d]" by both
parties. CP at 288-89. As a result, the lease grants Tesoro de facto veto power over
final design. Any future modifications to the project, including the pursuit of
reasonable alternatives, can proceed only with Tesoro's permission. !d.
4
We recognize that as a practical matter, the Port and Tesoro (indeed, parties to any
major project) will want to reach certain understandings prior to completion of the
EIS. Rather than signing binding contracts that limit reasonable alternatives, their option
consistent with SEP A is to enter into a memorandum of understanding (MOU) or similar
arrangement. In International Longshore & Warehouse Union, Locall9 v. City ofSeattle,
the court held that an MOU is not an "action" under SEP A and does not limit reasonable
alternatives. 176 Wn. App. 512,523,309 P.3d 654 (2013) (explaining that Seattle's MOU
with a private investor did "not limit or control future decisions the city and county may
be called on to make").
-9-
Columbia Riverkeeper v. Port of Vancouver USA, et al., 92335-3 (Stephens, J., dissenting)
The majority suggests that the conditions precedent clause in the lease
provides a sufficient safeguard against violations of WAC 197-ll-070(1)(b).
Majority at 22. As a precondition to Tesoro occupying the property, the lease
requires Tesoro (with the Port's help) to obtain "all necessary licenses, permits and
approvals," CP at 288, including EFSEC certification. Failing this, either party may
terminate the lease. Id. at 281, 288. The majority concludes, without explanation,
that this clause "satisfies" the Port's obligation to avoid restricting reasonable
alternatives. Majority at 21. We disagree. On its face, this language is irrelevant to
the limitation of reasonable alternatives. The clause does not allow for renegotiation
of the contract's detailed terms during or after the contingency period. 5 It merely
allows either party to back out of the project in the event that EFSLA certification is
refused (at which point the project could not proceed anyway). Furthermore, the
purpose of this contractual language is not to assure SEPA compliance. Preapproval
requirements are fairly common in business leases and typically serve as an "escape
clause" to free each party from its obligations in the event of contract frustration.
See, e.g., 2 ALVIN L. ARNOLD & MYRON KOVE, MODERN REAL ESTATE PRACTICE
5
To the extent that the majority implies that any restriction of alternatives in the
lease remains "dormant" until EFSEC certifies the project, this too is incorrect. Majority
at 22-23. The lease specifies that certain terms have legal force during the contingency
period. CP at 288 (noting that once signed, the lease obliges Tesoro to pay a "Contingency
Period Fee" and charges both parties to "work diligently and in good faith to pursue all
necessary licenses, permits and approvals").
-10-
Columbia Riverkeeper v. Port of Vancouver USA, et al., 92335-3 (Stephens, J., dissenting)
FORMS AND COMMENTARY § 22:11 (2007); 6 see also Weyerhaeuser Real Estate Co.
v. Stoneway Concrete, Inc., 96 Wn.2d 558,637 P.2d 647 (1981) (contract frustration
of a mining lease containing similar language). This boilerplate contract provision
provides too slim a reed on which to hang meaningful SEPA compliance.
(2) The Port's Action Conflicts with SEPA's Fundamental Mandate of
Environmentally Informed Decision-Making
The majority argues that the other actors involved in this case, EFSEC and the
governor, can ultimately ensure SEPA compliance. Majority at 22-23. The majority
reasons that because EFSEC and the governor are independently subject to SEPA
and are required to consider reasonable alternatives, this "ensures "'[r]easonable
altemative[s]"' for the Port." Id. at 23 (alterations in original) (quoting WAC 197-
11-786). This is illogical. As Riverkeeper points out, the fact that EFSEC will
conduct a SEPA review before recommending whether to certify the Tesoro project
"has no bearing on whether the Port violated its SEPA obligations by taking an
action that limits the Port's alternatives before the EIS issued." Suppl. Br. of Pis.-
Pet'rs at 17. Each responsible agency must meet its own obligations. Furthermore,
the majority's implicit conclusion-that the Port's actions limiting reasonable
6 "The Contract shall be closed . . . after all licenses and governmental approvals
have been obtained from all required authorities .... [I]n the event that the closing does
not take place within [number of months} ... then the Seller or the Buyer shall have the
option to terminate this Contract." (Third alteration in original.)
-11-
Columbia Riverkeeper v. Port of Vancouver USA, et al., 92335-3 (Stephens, J., dissenting)
alternatives were harmless so long as the final decision to certify or reject the
proposal complies with SEPA-fundamentally misinterprets the statutory scheme.
SEPA is not solely concerned with the final decision to approve or reject a proposal.
Instead, its core mandate is triggered earlier in the project life cycle.
SEPA requires government agencies to consider environmental impacts
throughout "the decisionmaking process." Leschi Improvement Council v. Wash.
State Highway Comm'n, 84 Wn.2d 271,300,525 P.2d 774 (1974) (emphasis added).
This is why SEPA projects are not presented fully fledged, awaiting only an up or
down vote; the design of the project itself should benefit from information revealed
by environmental review. 7 The idea that lessons learned from environmental review
should inform project planning is foundational to this court's case law requiring
timely SEPA review. See, e.g., J(ing County, 122 Wn.2d at 664. Without it, the lead
agency's mandate to evaluate and recommend the least harmful reasonable
alternative would be pointless. 8
7 As the Court of Appeals observed, it is a violation of SEPA to "shap[ e] the details
of a project before completing an EIS, effectively turning administrative approval into a
'yes or no' vote on that project as detailed." Columbia Riverkeeper, 189 Wn. App. at 818-
19 (citing Lands Council v. Wash. State Parks & Recreation Comm 'n, 176 Wn. App. 787,
806-07, 309 P.3d 734 (2013)).
8 The majority mischaracterizes SEPA's mandate for early environmental review as
solely concerned with combatting institutional "inertia." Majority at 24. This devalues its
critical importance. Timely review is essential to ensuring that decision-makers are
properly informed before they make important project design decisions. EFSEC's
forthcoming EIS will do nothing to inform the Port about decisions it has already made.
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Columbia Riverkeeper v. Port of Vancouver USA, et al., 92335-3 (Stephens, J., dissenting)
In this case, it is undisputed that the Port negotiated and signed the lease with
Tesoro without the benefit of environmental review. By committing to project
details pre-EIS, the Port denied itself information the EIS would have provided in
shaping the project and informing its decision to sign the lease. For example, the
EIS would have provided the Port with a reliable assessment of the spill, accident,
and derailment risks associated with the Tesoro project, which would be the largest
oil-by-rail terminal in the nation. In light of the project's proximity to downtown
Vancouver, Washington, 9 the EIS might have suggested measures to mitigate these
risks, or explored reasonable alternatives such as different locations or a reduction
in project scale. The Port could have incorporated EIS recommendations into its
negotiation platform, or used the EIS 's environmental risk analysis to determine
whether specific provisions in the lease-such as Tesoro's $25 million pollution
insurance cap-were adequate. Instead, the Port decided to sign the lease and
commit itself to the Tesoro project without being fully informed of the likely
environmental consequences. SEPA requires more.
Perplexingly, the majority acknowledges that the Port's decision "whether to
lease public property under its control ... is independently subject to SEPA and
must await the lead agency's analysis of environmental impacts." Majority at 20-
9
CP at 216-18 (minutes from public meeting indicating safety concerns of
Vancouver-area residents).
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Columbia Riverkeeper v. Port of Vancouver USA, et al., 92335-3 (Stephens, J., dissenting)
21. We agree, and cannot understand how the majority nevertheless concludes that
the Port complied with SEPA when it signed a binding lease before EFSEC
completed its EIS. The Port restricted available alternatives in violation of WAC
197-11-070(1)(b) and in conflict with SEPA's core mandate of environmentally
informed decision-making. We should reverse.
CONCLUSION
After finding that the Port is subject to WAC 197-11-070(1)(b) and not
exempt from SEPA, the majority endorses the Port's actions in conflict with both.
A binding commercial lease self-evidently limits the parties' alternatives, and
standard contract frustration language is an inadequate safeguard for reasonable
alternatives under SEPA. Similarly, SEPA requires the EIS to inform both project
design and final decisions-yet the Port's actions preceded the EIS's existence. The
majority's analysis has the consequence of granting the Port a sweeping exemption
from SEPA, allowing the Port and Tesoro to advance the design of the nation's
largest ever oil-by-rail project completely without the benefit of environmental
review. Because this result runs contrary to the core mandate of SEPA, we
respectfully dissent.
-14-
~Columbia Rl.verkeeper v. Port ofVanc:ouver USA, et al., 9233~~3 (S.tephens~ l, dissenting)
15
Columbia Riverkeeper v. Port of Vancouver USA
Combined Opinion