Columbia Riverkeeper v. Port of Vancouver USA
92335-3
| Wash. | Mar 16, 2017Background
- The Port of Vancouver entered a lease (Oct 2013) with Tesoro to build an oil-by-rail terminal on Port property; the lease included detailed project specifications and required mutual Port/Tesoro approval of final designs.
- The lease was contingent on obtaining "all necessary licenses, permits and approvals," including EFSEC certification; either party could terminate if conditions precedent failed.
- EFSEC designated itself lead SEPA agency and issued a Determination of Significance requiring an EIS; the EIS process was ongoing after the lease was signed.
- Columbia Riverkeeper, Sierra Club, and Northwest Environmental Defense Center sued, alleging among other claims that the Port violated SEPA by entering the lease pre-EIS and thereby limiting reasonable alternatives in violation of WAC 197-11-070(1)(b).
- The trial court granted summary judgment for the Port (finding contingencies preserved alternatives); the Court of Appeals affirmed on different grounds (treating WAC 197-11-070 as applying only to EFSEC and the governor).
- The Washington Supreme Court affirmed the Court of Appeals' judgment (Port did not violate SEPA) but adopted the trial court's reasoning: WAC 197-11-070 applies to the Port and the lease’s contingencies plus retained mutual approval preserved reasonable alternatives.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SEPA and EFSLA conflict | SEPA’s prohibition on actions that limit reasonable alternatives should control; EFSLA does not excuse Port from SEPA. | EFSLA is the specific regime for energy siting and limits SEPA’s constraint to EFSEC and the governor. | No conflict; SEPA and EFSLA overlap and are harmonizable. |
| Whether WAC 197-11-070(1)(b) applies to the Port | The Port is an agency with jurisdiction and the lease limited the Port’s reasonable alternatives pre-EIS, violating WAC 197-11-070. | The regulation applies only to EFSEC/governor for EFSLA projects, not the Port. | WAC 197-11-070(1)(b) unambiguously applies to the Port as an "agency with jurisdiction." |
| Whether the Port’s lease limited reasonable alternatives before the EIS | The lease’s detailed, binding terms and mutual-approval structure foreclosed alternatives and created momentum making later alternatives illusory. | The lease is contingent on EFSEC/governor approval and preserves Port veto/mutual approval rights; contingencies and retained authority preserve reasonable alternatives. | The lease did not violate WAC 197-11-070(1)(b): the conditions precedent plus Port’s retained approval authority, EFSEC’s lead-agency EIS role, and the governor’s discretion preserved reasonable alternatives. |
| Remedy / disposition | Void or enjoin lease as inconsistent with SEPA (plaintiff) | Uphold summary judgment for Port (defendant) | Affirm Court of Appeals; judgment for Port is affirmed on trial-court grounds. |
Key Cases Cited
- Save Our Scenic Area v. Skamania County, 183 Wn.2d 455 (discussing summary judgment standard and SEPA principles)
- Residents Opposed to Kittitas Turbines v. State Energy Facility Site Evaluation Council, 165 Wn.2d 275 (construction of overlapping EFSLA/SEPA frameworks)
- Friends of Columbia Gorge, Inc. v. State Energy Facility Site Evaluation Council, 178 Wn.2d 320 (describing EFSEC’s role and EFSLA process)
- King County v. Wash. State Boundary Review Bd., 122 Wn.2d 648 (timeliness of EIS and danger of administrative inertia)
- Weyerhaeuser v. Pierce County, 124 Wn.2d 26 (EIS adequacy and requirement to analyze reasonable alternatives)
- International Longshore & Warehouse Union, Local 19 v. City of Seattle, 176 Wn. App. 512 (distinguishing MOUs from binding actions under SEPA)