Vanishing Science, Vanishing Fairness (2)

Evidence of Bias in City of Blaine’s Avista SEPA Appeal

by Geoffrey Baker
Contributing Editors: Tina Erwin and Oliver Grah

Part 2

Tactic 6: Signal a Future Judge With “Near Bulletproof ” Case
— Hearing Examiner Bias Quantitative Analysis

In land-use hearings, bias is rarely overt. A hearing examiner does not announce a preference for the developer. Instead, bias appears in subtle but consistent patterns: whose evidence is accepted, whose credentials are questioned, and whose arguments receive the most weight.

1. Who is speaking?
   (The Developer, the City of Blaine, the Regulator or the Community?)
2. How is the evidence weighed?
   (Is the Hearing Examiner validating the evidence as “Supportive” or dismissing it as “Critical”?)
3. What language is used?
   (Is the examiner using concrete, factual words, or abstract, subjective words like “speculative” such as “near bulletproof ”?)
4. Is the Hearing Examiner acting fairly?
   (Does the examiner hold both parties to the same standard of proof, or is a “homecourt advantage” given to the Developer/Applicant)
5. To find out, Water Planning Matters volunteers audited the ruling judicial neutrality. Using open-source e-discovery tools (no AI), they conducted a forensic sentence-by-sentence review of the Blaine Hearing Examiner’s 58-page ruling and approximately 50 related documents including exhibits, public comments and the five-day transcript.

Findings: Bias Results

The Blaine Hearing Examiner’s recommendation (Ruling — see Avista Public Records Document) showed strong bias for a pro-City of Blaine/pro-applicant tilt. The bias results align with what residents experienced during the hearings: extreme, structural favoritism toward the Applicant/City, and the total erasure of scientific community (best available science) on atmospheric rivers and flooding. The audit flagged 43 indicators across seven categories: procedural manipulation, scope narrowing, standard inflation, burden shifting, credibility suppression, evidence minimization, and asymmetrical scrutiny. The pattern matches residents’ experiences: systematic favoritism toward the City/Applicant and exclusion of exhibit evidence.

Examiner Ruling Examples of Bias

Below are samples of actual textual evidence pulled directly from the ruling that triggered the tagging by bias mechanism.

1. Procedural Manipulation

During the hearing, the Blaine Hearing Examiner admitted the 2025 Whatcom Future Shorelines Report creating a “cure path” for web exhibits for the University of Washington Climate Impacts Group data on intensified storms. Yet the final ruling declares the climate science was “not admitted” because the studies were not on the appellants’ original exhibit list. This allowed the City of Blaine to continue using a 77-year-old rain dataset (1948-2009) for stormwater modeling: data that predates the frequent atmospheric rivers now flooding Whatcom County almost yearly.

2. Scope Narrowing

The ruling repeatedly narrows what “counts” —

• “Direct federal law is beyond the scope of this permit review.” (Ruling, p. 6)
• “Jurisdiction is limited to applying city-adopted standards.” (Ruling, p. 14)
• “That’s a federal compliance issue outside the scope of this review.” (Ruling, p. 17)

These statements sideline federal and state waters and emerging pollutants like 6PPD-quinone. Despite Washington State Department of Ecology data, maps and regulations submitted, the Ruling claims Appellants “have not established any adverse impacts to 303(d) waters.” Here, the examiner uses scope to shrink exactly where SEPA requires a “hard look” at evidence.

3. Standard Inflation

The Blaine Hearing Examiner describes the Applicant’s record in unusually deferential terms. He calls the applicant’s record “near bullet-proof ” (p. 2), gives “substantial weight” to the City of Blaine’s SEPA official (p. 4), and states the balance of evidence favors the developer (p. 21). Meanwhile, Department of Ecology and Army Corps concerns receive “very little weight” because staff did not appear for cross examination, while the developer’s paid consultants are elevated over Appellant expert witnesses and scientific exhibits.

4. Burden Shifting

Procedural failures are attributed exclusively to Appellants:

• “The Appellants didn’t produce the requested pdfs.” (Ruling, p. 10) — Contradicted by the November 10 email from Blaine City Council listing W5A/ W5B as received .
• “Appellants made no admittable reference to their rebuttal list.” (Ruling, p. l10) — Contradicted by the Hearing Examiner’s own November 25 email admitting pages 1-25 and acknowledging W5/W8 citations — contradicted by the Remand letter sent to and ignored by Blaine City Council.
• “Appellants have also failed to identify how the City of Blaine’s AKART stormwater regulations fail to prevent cumulative water quality standards.” — Contradicted by the Appellant 12.5.2025 Reply Brief which details AKART and 303(d) deficiencies. (4) [The 303(d) list, so called because the process is described in Section 303(d) of the Clean Water Act, lists all water bodies in the polluted water category.]

5. Credibility Suppression

The ruling systematically diminishes Appellant’s expertise, including reference to third party technical or scientific documents (UW CIG, etc.) while elevating Applicant’s credentials:

• “Mr. Pointer is not an engineer, geologist or hydrogeologist. He has no training or expertise to question the best available science basis of the County or City maps.” (Ruling, pp.15-16) — Contradicted by public comments from retired engineers, submission of third party technical and scientific documents from Whatcom County.
• “Given the relatively sparse evidence relied upon by Mr. Grah, the Applicant’s delineation and classifications are found to be sufficient using the standard wetland indicators of the City’s wetland regulations” (Ruling, p. 5) … — Contradicted by Grah’s repeated testimony of having thoroughly reviewed the Applicant’s project assumptions for wetlands and having a master’s degree in water science and 25-plus years of professional experience in Whatcom County as a certified wetlands scientist, including five years as a senior planner and supervisor for critical areas.

6. Evidence Minimization

• “The DOE comments on this issue are due very little weight because they were [based on] review of aerial photographs.” (Ruling, p. 16) — Minimizing regulator concerns
• “The Army Corps was also not present for cross examination at the hearing so its comments like those of DOE are given little weight.” (Ruling, p. 17)

7. Asymmetrical Scrutiny

• “The Appellants had no qualified expert to contest the engineering work of the Applicant’s civil engineer.” (Ruling, p. 3) — Questions arising from technical reports and consultants unable to attend in person go unanswered and are dismissed.
• Appellant experts (Grah) with local wetland and hydrology experience are dismissed as “relatively sparse,” while Applicant consultants are accepted at face value, even where their data are limited or contested by Ecology and U.S. Army Corps of Engineers’ comments.
• The Appellant expert Grah was denied permission to access wetland sites for verification. Later it was discovered that wetlands were misclassified with lower protection standards or missed entirely near a north off-site detention pond.

Deference or Structural Prejudice?

State law (WAC 197 11 680) requires Hearing Examiners to give “substantial weight” to the city’s SEPA determination and to overturn it only if the full record is clearly erroneous. The Blaine Hearing Examiner says the City of Blaine met that standard, relying on Applicant consultants and peer review studies combined with procedural rules.

The ruling appears to show balance. It acknowledges limitations in the City of Blaine’s and developer’s case, including outdated precipitation data, conflicting aquifer maps, and existing detention ponds unlikely to meet current standards. Yet each time, the ruling resolves the dispute in the city’s favor by giving “substantial weight” to the SEPA official, declining to admit climate exhibits on the exhibit list grounds or treating Clean Water Act issues as “beyond the scope.”

The audit’s 43 indicators show how deference becomes structural prejudice when disputed science and material exhibits never get a full review. This short-circuits the City of Blaine’s “hard look,” responsibility and legal nexus for any intensified flooding and downstream water-quality degradation in Birch Bay.

Why This Matters and What You Can Do

The Avista case reveals systemic flaws in Washington’s quasi-judicial land-use system. The same city acts as a dual agency, both developer partner and environmental judge, while examiners are paid by the jurisdictions they review. With Blaine’s process closed, Ecology’s Clean Water Act permits remain one of the last safeguards. WaterPlanningMatters.org has sent Ecology and the U.S. Army Corps a detailed Compliance Action Plan to help resolve open issues before land clearing starts.

In March 2026, at a PUD Hearing relating to the development of a Critical Aquifer Recharge Area connected hydrologically to municipal drinking water wellheads, the same Hearing Examiner systematically mischaracterized the community’s environmental and geohydrological objections as “lay opinions” that expend “taxpayer money” for “nothing.” Here, the Hearing Examiner omitted the testimony provided by a Certified Professional Wetland Scientist with over 40 years of watershed experience.

By suppressing credible scientific objections as lay interference, the examiner insulated the developer’s wetland baseline buffer geometries from further state and federal scrutiny. This procedural maneuver effectively shielded the development’s impact on connected salmon-bearing waterways and municipal aquifer recharge zones from rigorous scientific evaluation before final project approval by the Blaine City Council.

Given the bias of some examiners to favor their paying government clients, we suggest several urgent structural reforms:

• Remove the Hearing Examiner paymaster relationship. Assigning state or regionally pooled examiners to large-scale PUD SEPA proceedings would cost little and remove the most obvious structural incentive (“given weight”) when the city both hires and pays the Hearing Examiner. The appearance of independence, which Washington’s appearance-of-fairness doctrine (RCW 42.36) requires is structurally compromised.
• Stop Regulatory Capture at local municipalities with “Dual Agencies.” Enforce Segregation of Duties in cities with high-impact SEPA Agency reviews. Require thirdparty pre-determination review (outside of service area) of SEPA checklists, application of best available science practices (AKART, etc.) and scrutiny of city and developer-paid studies. For example, the updated process can require Ecology review before development projects are considered “Complete” and vested by municipalities like Blaine to inferior standards (See State of Oregon Ecology process).
• Apply Best Available Science. Apply Climate-adjusted stress tests (Climate Impacts Group multiplier factors) for the Western Washington Hydrology Model for public safety and health in city vesting doctrines so best available science cannot be shielded by outdated stormwater manuals and legal procedure (update the SEPA checklist for changed climate change impact that cannot be ignored by the SEPA official).
• Enforce permitting, monitoring and compliance (Statewide Environmental Reports Tracking System (ERTS) enforcement).
• Mandate independent state (Ecology) wetland delineation studies (criteria TBD).
• Stop public record stonewalling. Require a 6-week advance and full city disclosure of studies, applicant communications online before applicant hearings and three weeks of public posting before SEPA or Critical Areas Determination. Determinations cannot be made or applications considered complete until all submission documents are substantially complete for public review.
  ______________________________________________

Geoffrey Baker, MBA (also known as Otto Pointer), enjoys working at the intersections of technology, public health, compliance and sustainability. Having grown up overseas, Geoffrey respects diverse viewpoints, staying nonpolitical and overcoming challenges with persistence. He has graduate degrees in healthcare and economics. MBA Healthcare, published previously in Whatcom Watch (Sept. 2025) under the pseudonym Otto Pointer.

Tina Erwin CDR USN (Ret.), MM, spent 20 years in the Navy, working for the U.S. Submarine Force as a terrorist expert, retiring at the Commander level. She also has a master’s degree in management. Tina is currently the author of nine books on metaphysics.

Oliver Grah, M.S., C.P.W.S., is a watershed scientist and Certified Professional Wetlands Scientist with over 45 years of experience in hydrology, climate change adaptation and environmental policy including over 30 years in northwest Washington. He served as Water Resources Program Manager for the Nooksack Indian Tribe, directing glacier monitoring, stream flow, sediment and temperature modeling, and climate resilience planning for salmon habitat. He previously held the position of Natural Resources Division Manager for Whatcom County, where he oversaw Best Available Science integration in land-use and critical areas decisions. Oliver now works as an independent expert witness and consultant on SEPA, wetland science, aquifer protection and regulatory compliance.

Sources

• Whatcom County Public Works, Future Shorelines Project Story Map (2025)
• University of Washington Climate Impacts Group’s online “Projected Changes in Extreme Precipitation” tool for the Birch Bay, WA.
• “On Epistemic Privilege & The Bias of Planning Boards:” Einstein, K. L., Glick, D. M., & Palmer, M. (2019). “Neighborhood Defenders: Participatory Politics and America’s Housing Crisis.” Cambridge University Press. (Provides empirical evidence that local planning bodies systematically categorize public comments as “non-technical noise” to favor institutional developers.)
• On Testimonial Injustice (The “Lay Discount” Rate): Fricker, M. (2007). “Epistemic Injustice: Power and the Ethics of Knowing.” Oxford University Press. (Defines the concept of wronging a speaker in their capacity as a knower by assigning a “credibility deficit” based on their identity as a layperson.)
• On the Mathematical Weighting of Legal Arguments: “What About the Precedent: An Information-Theoretic Analysis of Common Law” (2021) by Josef Valvoda et al. The Role of Precedent in Computational Models of Law (Cambridge) by Josef Valvoda (2023)
• On “Lay Opinion” as Substantial Evidence: Georgetown Preservation Society v. County of El Dorado (2018) 30 Cal.App. 5th 358. Comparative legal precedent establishing that lay testimony regarding observable environmental impacts — such as flooding or traffic — constitutes substantial evidence and cannot be categorically disregarded simply because the speaker is not an engineer.
• On Methodologies: Leslie, R., Jain, P. T., & Ghimire, S. S. A. (2025). “Data analytics in judicial decision making: Enhancing transparency or undermining independence?” GSC Advanced Research and Reviews, 15(3), 1–15.