The state Department of Ecology dismissed findings from its own consultants when it wrote the study used to deny permits for the proposed Longview coal dock, Millennium Bulk Terminals argued in a lawsuit filed Monday.
Among the claims is that Ecology’s estimate of cancer risks posed by diesel locomotive emissions are misleading.
The suit steps up the legal battle brewing between Ecology and Millennium Bulk Terminals, which wants to build North America’s largest coal export terminal at the old Reynolds Metals aluminum site.
The suit alleges that Ecology violated the state Public Records Act by failing to provide “essential information” the agency used as “the basis for critical findings” in the environmental impact statement for the terminal, released in April. This week’s lawsuit is in addition to the suit Millennium against Ecology in October over the agency’s move to reject a key water quality certification needed for the $680 million coal dock.
In a separate filing Monday, Millennium asked the Shoreline Hearings Board to overturn a decision rejecting two shoreline permits needed for the project. Hearings examiner Mark Schiebmier acted outside his authority when he denied the permits last month, Millennium argues.
Of these two actions, the suit against Ecology is far more complex and intriguing, because it implies that the state manipulated study findings so it could reject the coal terminal.
Millennium argued in the suit, filed in Thursday County Superior Court, that Ecology failed to provide documents in a timely manner as required by state law. It says Ecology dismissed its own expert consultants’ findings on greenhouse gas emissions and diesel train emissions’ effect on cancer rates. Millennium said in its complaint that Ecology did not provide the company with modeling data used to estimate how much greenhouse gas and diesel particulate matter emissions the project would generate.
Ecology officials said Monday the agency is working to respond to large public records requests from Millennium by providing documents in installments, including a batch of 2,300 files delivered to Millennium Monday.
The coal terminal developer has criticized Ecology’s findings on greenhouse gas and diesel particulate matter emissions. The final environmental impact study found that diesel locomotive emissions would increase cancer risks for Highlands-area residents. It also found that the project would generate an additional 2 million metric tons of global greenhouse gas emissions annually.
Millennium is seeking additional information about at least three separate instances when it says Ecology contradicted expert opinion or analysis in preparing the environmental impact statement.
First, Millennium said Ecology’s own consultant warned against using state regulations for stationary sources of diesel emissions to estimate cancer risks from mobile sources, such as trains. Records suggest that an Ecology project manager ignored that advice, Millennium said.
Second, Ecology’s consultant suggested that comparing Millennium train diesel emissions to overall air emissions in Cowlitz County was “not an apples to apples comparison” and would be misleading. Ecology did include this comparison anyways, the suit says.
Third, Ecology’s consultant said its modeling of greenhouse gas impacts should not be used to make a plan to compensate for them. However, Ecology did so anyway, Millennium said.
The company argues Ecology has been slow to respond to its requests seeking information about why it went against these expert opinions. It argues the information should be readily available given that the EIS was completed in April after five years and $15 million in permitting costs paid by Millennium.
“If a company paid millions to a consultant for a project, that consultant would provide the background information supporting their work to the client within weeks. Yet Ecology and their consultants have not been able to provide that information to us for over half a year,” Wendy Hutchinson, Millennium Vice President, said in a prepared statement. “Why can’t Ecology provide this information directly, or ask its consultant to provide the information?”
According to Ecology, the company’s attorneys made eight separate public records requests since May.
“Because of the sizes of these requests we have been delivering our responses in installments. We’ve made 16 installments, so far ... with many more yet to come,” said Dave Bennett, Ecology spokesman.
“We will continue to work diligently and in a timely manner on all of their requests. As for the EIS, we believe Cowlitz County and Ecology carried out a transparent, thorough and impartial public process from the start, and we will continue to do so,” he said.
Anti-coal groups said Millennium is simply stringing along an already-dead-project.
“All the lawsuits in the world aren’t going to resurrect this doomed project. On four separate occasions this year, Washington State made it clear that building the largest coal export terminal in North America would pose too much risk to our clean air, clean water and stable climate,” said Jasmine Zimmer-Stucky, Columbia Riverkeeper senior organizer and Power Past Coal Coalition member.
Coal supporters championed Millennium’s legal efforts, suggesting they have more wide-ranging implications.
“Decisions like these eventually cast doubt on our regulatory process and give potential investors pause before considering operations here in Washington state,” said Rob McKenna, former state attorney general who released a statement through Keep Washington Competitive. “I support Millennium in their appeal of this decision and hope it shines a bright light on the abuses at work by regulators in our state agencies.”