Cowlitz County Superior Court Judge Stephen Warning later this month will determine whether three environmental groups can intervene in the state’s defense against a lawsuit brought by Northwest Alloys Inc. and the developer of the proposed coal export terminal west of Longview. Warning said there is one big question to address: “What exactly am I going to be deciding?”
At a hearing Wednesday, Warning said it was “amazing” and surprising how little case law there is on the matter in question — whether environmental groups can intervene in a lawsuit that Northwest Alloys brought last month against the State Department of Natural Resources. Northwest Alloys and Millennium are challenging former state Public Lands Commissioner Peter Goldmark’s January decision to not allow Millennium to sublease state aquatic lands where the company wants to build a dock.
Whether Millennium gets to build the dock would be a critical factor in the terminal ultimately getting built at the site of the former Reynolds Metals Co. aluminum plant. Millennium leases the site from Northwest Alloys.
In rejecting a sublease for Millennium, Goldmark said the company failed to provide adequate financials about itself and the project to DNR. Millennium insists that Northwest Alloys’ aquatic lands sublease with DNR allow additional docks to be built at the site. (One is already there.)
Judge Warning asked throughout the hearing whether Goldmark had “environmental information” in front of him that played a role in his decision. Warning didn’t know if the details and documents relating to Goldmark’s decision-making process should have any bearing on whether the environmental groups should be allowed to participate in the case.
Nonprofits conservation groups Columbia Riverkeeper, Sierra Club and Washington Environmental Council want to join the state’s side in the lawsuit to defend the commissioner’s decision. Current Public Lands Commissioner Hilary Franz, who replaced Goldmark in January, has said she opposes using state land for fossil fuel projects and is unlikely to reverse Goldmark’s decision.
Environmentalists have been in a battle against Millennium’s coal terminal project, which is estimated to export 48 million tons a year to Asia, create 1,000 construction jobs and 130 permanent jobs, and generate millions of dollars in taxes annually.
Attorneys representing both sides argued over whether this is a contract dispute or something broader that includes the interests of the environmental groups.
Millennium and Northwest Alloys argued that the environmental groups don’t have a stake in the sublease. Northwest Alloys attorney Linda Larson on Wednesday said it was “unfair and prejudicial” for the company to be stuck in the proceeding over a contract established with DNR in 2008 that had nothing to do with a coal terminal.
“That is the main practical problem of their intervention,” Larson said. “Whatever you decide ... does not create a coal terminal. That’s a separate proceeding.”
Attorney Kristen Boyles, representing the environmental groups, argued that the lawsuit involves more than just a contract case and affects a broad scope of work that the groups are largely involved in.
“The commissioner made a decision. He made a decision based on lots of things other than that contract,” Boyles said. “I think that it’s very clear that our interests are harmed, because if this sublease denial is upheld, this coal terminal isn’t going forward. We have a huge stake in this.”
Warning said there was one sentence that stands out to him in Goldmark’s letter: that the lease “entitles DNR to consider both the nature of Millennium’s business and its financial conditions as part of its sublease.”
Warning set a March 29 hearing date and said he wants to make sure to “get the decision right” the first time. He won’t be deciding at that time whether Goldmark’s decision was right or wrong, just whether the environmental groups get to join the legal battle over it.
“What I’d like to get is, procedurally, just what the heck am I doing?” Warning said. “What am I going to be deciding and what am I going to use to decide it?”
In an interview after the hearing, Millennium spokeswoman Wendy Hutchinson said the judge’s determination wouldn’t kill the project if he were to decide in favor of the environmental groups.
“We are committed to the Reynolds site. We put tens of millions into the cleanup of the Reynolds site,” Hutchinson said. “We want to revitalize that facility and make it into a world-class coal terminal.”