by Eddy Ury
New Restrictions on Fossil Fuel Industries Passed Unanimously
Editor’s Note: For more background and context, read Part 1 in the February 2019 issue and Part 2 in the January 2020 issue.*
Cherry Point has long been one of the world’s most targeted locations for intercontinental transshipment of fossil fuels. In the last decade, disputes around Cherry Point’s development galvanized thousands of local residents on opposing sides through numerous public hearings, rallies, actions, and local elections — until now. After a decade of fighting, it seems that the window to export coal, oil and gas through Cherry Point has closed for good.
On July 27, the Whatcom County Council unanimously passed an ordinance that outright prohibits new fossil fuel facilities, terminals and piers, while limiting expansion of existing industries. These are the most restrictive regulations currently imposed on oil refineries by any municipality in the United States. What’s more, at the final stage of public input, these new regulations were supported by the very same oil companies and labor unions that had once fiercely opposed them. The unprecedented outcome left many observers with lingering questions about this monumental legislation’s final form and function; some may find answers in this story.
The road to passing these “Cherry Point Amendments” ran through a span of time during which our world turned on its head. While the process for “Cherry Point Amendments” unfolded, we saw the rise and fall of President Trump, the Covid-19 pandemic, and reached the tipping point of climate catastrophe. The year 2020 marked a pivotal point for our changing reality in so many ways; the course for Cherry Point was no exception.
The Thin Green Line
For the last decade, an onslaught of fossil fuel industry expansions across this continent have been embattled, halted, delayed, canceled and denied. An avalanche of dirty energy projects cascaded down from mountains of Wall Street capital into high-risk gambits to carry fossil fuels from unconventional sources through new pipelines and transshipment terminals. Surges of inefficient, polluting and expensive extraction methods like fracking and strip mining were hailed as vehicles for energy independence and economic recovery.
Yet still, behemoth fossil fuel expansion proposals were met with massive organized resistance from coalitions of indigenous nations, environmental organizations, climate activists, public health advocates, and local communities who prevailed in keeping billions of tons of coal, oil and gas in the ground by blocking their only pathways to market.
In locales across the continent, proposed fossil fuel expansions stirred political turmoil and cleaved social divisions. Corporate proponents pitched the elusive prospect of good jobs and new revenue, pitting the anxieties of economic insecurity against public health and safety. Public discourse and media framing shaped a familiar narrative of conflict between disjunctive priorities: jobs or the environment, though advocates for both sides aligned in rhetoric that we shouldn’t have to sacrifice one for the other.
In Whatcom, residents rallied by the thousands in opposition and support for a proposal to build North America’s largest coal export terminal at a place called Xwe’chi’eXen, an ancestral village site and traditional fishing area for Lhaq’temish People (Lummi Nation). The name Cherry Point may refer to the aquatic reserve and the industrial zone overlaid on that shoreline, where three large piers serve two oil refineries, a propane export terminal, a (now curtailed) aluminum smelter, and two adjacent fracked-gas power plants.
The formerly proposed Gateway Pacific Terminal was ultimately vanquished by Lummi Nation, whose treaty rights were upheld in May 2016 by federal authorities in rejecting permits. In the wake of that decision, the Whatcom County Council initiated a process to amend development rules for fossil fuel projects that would preclude projects like the coal terminal, and limit the health and safety risks from volatile oil trains and other hazardous shipment expansions. As a stopgap measure, the Whatcom County Council enacted an emergency moratorium temporarily barring permits for any proposal that would increase shipments of coal, oil, and gas through Cherry Point.
The moratorium sent shockwaves. Industries sounded the alarm with incendiary claims that these actions would devastate the local economy, inciting outrage among thousands of Whatcom residents. Environmental advocates — including Bellingham-based groups RE Sources and Stand.earth — mobilized thousands more to support a permanent ban on fossil fuel shipment projects.
The Public Process
In May 2017, the County Council passed Comprehensive Plan amendments that outlaid general planning goals for limiting the negative impacts from fossil fuel exports through Cherry Point. The council then commissioned a report from Cascadia Law Group recommending lawful actions within county authority, published in February 2018. Subsequently, resolutions were passed to implement the policies with development regulations. Drafts were drawn and discarded, until eventually the council introduced a land-use ordinance in August 2019. County planning rules required the draft to undergo public review by the Planning Commission, an appointed advisory board of nine volunteer residents who typically met twice per month.
The Planning Commission process opened with a Town Hall on Sept 12, 2019. Oil refinery employees and contractors showed up by the hundreds, hours before the scheduled start time of 6:30 p.m., overtaking the space. In the overflowing room, public comments were heard (up to three minutes per speaker) until midnight. The speakers were furious, earnest and passionate in their pleas to the Planning Commissioners to prevent the impending doom they were told would result from the proposed permitting conditions. They warned the new rules would force the loss of thousands of good jobs and millions in property tax revenue (by then a familiar rallying cry in local politics).
Through a series of eight work sessions held publicly that fall and winter (each lasting several hours), Planning Commissioners grappled over the technically intricate code amendments. The first few meetings took place while county general elections were in full swing, and opponents clearly aimed to slow the process in hopes of a power-shift. At an October work session, one Planning Commissioner used over half of the meeting time on record by repeatedly explaining his personal reasons for opposing the amendments altogether.
In February, Planning Director Mark Personius urged the Commission to complete their review of the amendments forthwith. Citing a long backlog of docketed items, he demanded that the next meeting be the last opportunity to propose substantial changes. Unexpectedly, it would be four more months before that meeting was held. Hours before the Planning Commission’s next scheduled time on March 12, the County Council (acting as Board of Health, at their last in-person meeting held to date) voted to suspend public meetings until they could be arranged online. A week later, the council began meeting virtually via Zoom video conference, soon followed by other boards and commissions adapting to the new format. The Planning Commission however, remained suspended for all purposes until the summer.
In Spring 2020, amidst the shocks of a global pandemic, economic shutdown, social unrest and great uncertainties, it became all the more difficult to maintain political will to pass policies widely decried as job-killing, destabilizing measures. Nonetheless, a bitterly divided County Council voted 4-3 to extend the fossil fuel moratorium six more months.
Eventually, the Planning Commission reconvened for a four-hour work session on June 25, 2020, where they adopted several staff-proposed revisions and voted to approve the updated draft amendments (pending additional definitions for new terms). By that time, the draft code amendments (albeit flawed already in some key dynamics when it arrived before the commission) had been mangled through revisions. Core policy points were removed altogether, while definitions of terms were twisted into contradictory policies. Major loopholes, inconsistencies, and statutory conflicts were inserted, undercutting the validity of the regulations altogether and setting up clear grounds for litigation.
One particular dose of legislative poison unexpectedly yielded an antidote. The Planning Commission had inserted the term “value-added processing” to functionally determine whether a conditional use permit (CUP) would be required for expansions. The Western States Petroleum Association (WSPA) then proposed a problematic definition that would negate the CUP requirement altogether. After hearing arguments from both sides on June 25, the Planning Commission ruled not to adopt WSPA’s definition, and asked for planning staff to work on a new definition in consultation with opposing stakeholders.
Instead, county planning staff held a private meeting only with industries without notifying others, ignoring relevant comments from RE Sources, before presenting a nearly identical definition to the Planning Commission on July 9. The motion to approve failed again. The commissioners then approved subsequent motions to finish their review, scheduled a public hearing, and asked that the stakeholders reach consensus on that definition before finalizing their recommendation on August 13. The following five weeks would prove to be the most pivotal period of the five-year process.
The Stakeholder Group
In mid-July 2020, two of the most engaged contributors from opposing sides sat down for a series of meetings, initially with an attempt to produce agreed definitions for key terms in the code amendments. Jeff Chalfant of bp Cherry Point Refinery and Eddy Ury of RE Sources (this article’s author) met several times in a two-week period, first over Zoom video conference then recurrently at Hovander Park in Ferndale. The discussions were productive beyond expectations. Through candid dialogue, only possible outside the constraints of public record and formal positioning, intentions and interests were laid bare. Painstaking arguments over the effect and purpose of policy language gave way to shared recognition of an opportunity to overcome obstacles to their respective aims. A proposition took shape to formulate policy revisions cooperatively. With low expectations, RE Sources and the fossil fuel companies agreed to attempt negotiations.
The first convening of stakeholders took place on July 27, 2020 — exactly one year before the County Council would vote unanimously to pass the Cherry Point Amendments ordinance (an unthinkable prospect at the time). The participants included delegates of RE Sources, Cherry Point’s currently operating fossil fuel companies (bp — formerly BP or British Petroleum —, Phillips 66, and Petrogas) and the construction trade union LiUNA 292, which stands for Laborers International Union of North America (Local 292). The competing advocates were personally familiar, having sat in opposite rows of the County Council Chambers through many long meetings where they sometimes made presentations with proposals and rebuttals. Having all been closely engaged at every step of the public process, they understood the present stalemate.
Though the council majority was determined to pass amendments to prohibit new fossil fuel industries and limit existing facility expansions, Whatcom Planning & Development Services (PDS) would be responsible for enforcing the rules, and their staff cast doubts on the proposed rules’ operability, clarity, and function. Opposing interest groups were well positioned to challenge the rules’ legality. Adjudication could result in the law’s remanding, but the lengthy process would prolong the undesired state of regulatory uncertainty for the businesses, at significant expense for the county.
Fixing the amendments would require a complicated series of revisions, and technically precise regulatory language with no precedent. Stakeholders with expertise and understanding of the language were distrusted and largely excluded from direct dialogue with the full council during public meetings. County planning staff had shown a pattern of deferring to industry lobbyists’ suggestions in all their recommendations, further muddying the waters.
The County Council was empowered to correct the mistakes at the final stage of the process; however, the revisions would have to be approved during public meetings conducted through Robert’s Rules of Order among participants whose aim was to block the amendments altogether. The opposition minority (3 of 7) councilmembers could interfere with disruptive discussion of every motion, and endlessly make their own protest motions to undermine the policy and procedure. The council majority could forcefully end debate by majority vote, but would thereby give credence to political attacks and legal challenges.
The negotiations were framed within mutually understood constraints and leverage dynamics. Parties at the table recognized the inevitability of new restrictions on fossil fuel industries, the boundaries of what could be achieved through county code, transparency of core interests and intentions, and the reality that neither side had a clear course to achieve their objectives on their own. The range of what could be negotiated was practically limited only by the rational principle that a joint-proposal must better serve respective interests than any alternative paths forward.
Against all expectations, in the course of just two weeks, the group arrived at consensus on a joint proposal for language revisions (from RE Sources, bp, Phillips 66, and Petrogas) that was unanimously adopted into the amendments by Planning Commissioners. With this proven success, the industries continued helping to craft technical language that would restrict their growth more effectively yet predictably.
Numerous stakeholder organizations that had actively engaged in the public process were invited to join the stakeholder group. At various levels, more participants engaged on behalf of differing interest groups: environmental (Stand.earth, Washington Environmental Council, Sierra Club, Pipeline Safety Trust), labor (LiUNA 292, International Brotherhood of Electrical Workers, NW Central Labor Council), and industry (WSPA —Western States Petroleum Association, BNSF Railway — a subsidiary of Burlington Northern Santa Fe LLC, and Puget Sound Energy). The team of rivals continued to debug the code over the next six months, working together for a hundred more hours of additional conference calls.
At first, most Councilmembers were openly skeptical about the group’s proposals. By the end of the first special council work session with stakeholders (a nearly five-hour video conference meeting), the officials grew more receptive, and eventually came to defer to the group’s recommendations for all further edits to the legislation. At several more public meetings held virtually that fall and winter, the stakeholders proposed clearer regulatory terms for transshipment capacity calculations, change of use for facilities, greenhouse gas mitigation, and financial assurance for damages.
In April 2021, the final set of stakeholders’ jointly proposed revisions were accepted by the County Council. The interim moratorium was quietly extended for the last time in May to allow time for legal review and final formulation of an ordinance, until it was lifted (five years after first enactment) on August 16, shortly after Whatcom County Executive Satpal Sidhu signed the code amendments into law on July 29, 2021. The final form of the ordinance enacted in July 2021 is arguably stronger overall in achieving its purpose, and more environmentally protective, than the initial draft that County Council introduced for public review two years earlier.
The new law outright prohibits new piers, docks or wharfs, fossil fuel refineries (including ‘fracked’ gas refineries of the type recently embattled in Tacoma and Kalama, Washington), fossil fuel transhipment terminals (including oil train stations and liquified natural gas (LNG) export facilities), and coal plants.
The oil refineries’ terminals are prevented from being repurposed for shipping crude oil or other fossil fuels without refining onsite. Existing facilities may continue making permitted upgrades, but capacity expansion projects must meet strict standards to win approval of the Hearing Examiner, with advanced notice for public review and broad ground for appeal. If granted, the Conditional Use Permits can be revoked if operators don’t comply with binding criteria to protect people and ecosystems.
The amendments have also bolstered the environmental review process with more stringent evaluation of impacts and strict requirements for mitigation and disclosure of activities and capacities. Upgrade projects, such as modifications to storage tanks, can avoid lengthier, uncertain permitting processes by accepting upfront conditions on their use — such that tanks built for oil refineries cannot be repurposed for exporting crude oil.
Some aligned policy components of the Cherry Point Amendments remain to be voted on as part of the Shoreline Management Program update this fall. Nonetheless, the county’s permitting process for industrial fossil fuel projects has been transformed, though it has yet to be tested with new permit applications.
The Turning Tides
Though the initial corporate strategy was to stir public outrage with misleading characterizations, as the years went on, these rumblings proved futile. The companies retreated, and staked their new objective as achieving regulatory certainty and clarity. Fighting the new laws in court would prolong that uncertainty indefinitely. The better option was to cooperate in making the rules more clear and effective in their purpose, to make a more predictable process for project permitting. They could weather new restrictions and regulations, just as they already had adapted and complied with many federal and state laws before, so long as they could plan and invest in projects with some assurance of timeline and outcome.
The amended rules benefit all parties involved with industrial permitting, including applicants, because the permitting process itself up to now was riddled with uncertainty of outcomes. Now, companies can better plan projects to meet specific conditions, the county authorities can save time and expense, and public interest groups can engage on stronger footing. The rules prevent destructive projects from being considered to begin with, so rather than fighting for years over such proposals, environmental groups can focus on other priorities, and industries can evolve in the transformative decades ahead as the world transitions away from dependence on fossil fuels.
Northwest communities have held the line valiantly against behemoth proposals to expand coal, oil and gas shipments through the Salish Sea, Columbia River, and Gray’s Harbor. These defenses brought us to a stronger position to move forward proactively to curb climate change, restore ecosystems, and transition to more sustainable economies. Now in 2021, it seems a new era has begun.
* To read Part 1, “County Council Moves to Protect Cherry Point” by Eddy Ury, visit: http://whatcomwatch.org/index.php/article/county-council-moves-to-protect-cherry-point/.
Part 2, “Heavy Impacts at Cherry Point” by Eddy Ury: https://whatcomwatch.org/index.php/article/heavy-impacts-at-cherry-point/
Eddy Ury was the leading advocate at RE Sources for Cherry Point Amendments from 2016 to 2021. He is currently a candidate for Whatcom County Council. Curious readers may send inquiries about this subject to: firstname.lastname@example.org or call (360) 603-2551.