Columbia Riverkeeper v. Port of Vancouver USA

• Court: Washington Supreme Court
• Decided: March 16, 2017
• Docket: 92335-3
• Status: Published

Opinion

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.

-12- 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).

-13- 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)