Followup: Judge allows legal action challenging Terminal 5 lease to proceed; Port, Foss reaction

1:02 PM: King County Superior Court Judge Mariane Spearman has ruled that the environmental-coalition lawsuit challenging the Port of Seattle‘s interim lease for Terminal 5 can proceed, one week after hearing arguments on a motion in the case. We’re still reading the ruling, but for starters, here’s what the coalition says in a news release this afternoon:

Seattle-area groups are challenging the Port of Seattle’s lack of public process and failure to assess the environmental repercussions of becoming Shell’s Arctic drilling homeport.

On March 2, 2015, the environmental groups pushed for swift review of their legal challenge in King County Superior Court.

Today Judge Mariane Spearman ruled that the case can be heard and directed the parties to negotiate the record for her review. The coalition is asking that the court vacate the Port of Seattle’s lease based on violations of the State Environmental Policy Act and the Shoreline Management Act. The Earthjustice lawsuit explains that the Port violated its long-range sustainability plans and its shoreline permit, which designate Terminal 5 as a cargo terminal and not a homeport for a drilling fleet. Both Shell and the Port were not forthcoming in specifying when the oil giant’s drilling fleet is expected to arrive in Seattle’s waters.

IN RELATED NEWS: A new public records release shows an intensive industry and labor lobbying effort to urge the Port of Seattle to enter into the lease. The Port lease was made known to industry long before any public disclosure. See document here.

The first public disclosure of the lease was in the agenda released days before the January 13th Port Commission meeting at which it was first publicly discussed and at which three of five commissioners affirmed letting staff proceed with it. On February 11th, in a letter to the environmental coalition, Port CEO Ted Fick announced he had signed the lease on February 9th. At the commission’s March 10th meeting, the open-public-comment period spanned more than three hours, with most of the speakers expressing opposition to the lease (WSB as-it-happened coverage here). The commission’s next meeting is next Tuesday (March 24th), with a semi-related item on the agenda.

ADDED 1:21 PM: We’ve just read the ruling. Among key points related to what was argued in court last Friday, Judge Spearman says the “Washington State Constitution recognizes the right to seek discretionary review of an administrative agency decision under the court’s inherent constitutional power” – so the decision to enter into the lease without a separate environmental review is in her jurisdiction. While the port contends that Foss hosting vessels from the Shell Arctic-drilling fleet would not be a change from the long-permitted use of Terminal 5 as a “cargo terminal,” the judge noted the coalition’s quoting of “Vessel Berth Moorage and Provisioning” in the port briefing memo for the aforementioned January 13th commission meeting, and wrote in today’s ruling, “These activities appear to be qualitatively different than Eagle Marine Services’ previous use of Terminal 5 as a marine container terminal.” (That was the terminal’s tenant before T-5 was shut down last summer in anticipation of the modernization project.) So the judge has granted the coalition’s request for a “writ of review” – a type of legal procedure explained here.

ADDED 4:36 PM: We’ve received comments from the Port and from Foss. First, from the Port via spokesperson Peter McGraw:

The ruling today is only a preliminary step in this matter. The judge’s ruling does not prevent Foss Maritime from continuing to use the terminal as described in the lease. Nor does it conclude that the port or Foss have failed to comply with any law. It does direct the parties to prepare a record so that the court can review the port’s compliance with SEPA. We look forward to providing this information to the court. The port continues to be committed to fully comply with any and all requirements and regulations.

And from Foss via spokesperson Paul Queary:

We are confident that our use of Terminal 5 will be in compliance with its current permit, and we will show that in court.

According to Foss, 101 people are currently working “on various jobs” at T-5, and 63 more are doing related work at Vigor Shipyard. (We noted the latter in our coverage of last week’s Port Commission hearing.)

AJ March 20, 2015 (7:30 pm)

Good grief people. Why are you punishing the taxpayers in King County? This is a source of “REVENUE”. They will just give their large amount of money to someone else. This is a legal product by the way.

Marcus M March 21, 2015 (9:59 am)

AJ, just because it’s a source of revenue doesn’t make it right or legal. ask any drug dealer

highland park resident March 21, 2015 (11:31 am)

Thank goodness. This was clearly an example of turning a blind eye to a very different usage of the area, breaking the current environmental restrictions. Not sad to see a back-door deal fall through!

AJ March 21, 2015 (1:14 pm)

Drug dealer? Really? I mentioned that petroleum is a legal product. I suppose that you don’t have a car, or ride a bus? or have a furnace? hot water? You don’t use anything remotely related to petroleum? I, or one, think energy improves the human condition, including providing living wage jobs.

lookingforlogic March 21, 2015 (8:44 pm)

The port is a secretive organization that has repeatedly deflected public disclosure. I kinda think that full disclosure would result in a complete shutdown and many would lose their jobs, supplier contracts and benefits so everyone that has a financial interest is closemouthed.

NoMoreExxonValdez March 22, 2015 (5:54 pm)

NO LEASE without bullet-proof language on complete and immediate prevention/containment/cleanup of spills. Too much is at stake with vulnerable Puget Sound and endangered wildlife, such as declining orca populations, at risk. Govt revenue and living-wage jobs notwithstanding, the oil company big bucks need to be committed up front, preferably in escrow.
Many thanks to WSB for continuing to educate the public on what is at stake here and how we can comment.

pat davis March 23, 2015 (8:24 pm)

SERIOUSLY – we need to keep a close eye on the Port of Seattle. Yes, they are a source of revenue and that is valuable. But so is our breathing air (ever seen the statistics for how much diesel gets into our breathing air and water from massive diesel trucks and diesel from ships? Additionally there are a number of small businesses that have tried very hard to get permits to open restaurants and more shoreline friendly activities along Harbor Avenue (eg: just south of Salty’s) and it is the Port of Seattle pushing back and not letting that happen. Interesting that we can ‘need’ to tear down the viaduct – yes, such an emergency (although it still carries traffic 14 years later) Why? The grab for waterfront. Well, have have waterfront as well and it would be great to have it be pleasant (and making income/$, of course) We are enduring noise pollution, air pollution, and water pollution from the Port of Seattle. And yes, they are sly in what they do. Let’s not be niave. Myself: I am gong to find out out to reach the people suing them and I am going to make a financial contribution. Also happen to notice that they PARK TRUCKS on the old piers (on the E side of waterway) and encroach into our neighborhood air? Why not use those next to heavy duty industrial areas? And yes, we have a lot to loose to throw away our water and air for big bucks manipulators. STOP THE PORT AT TERMINAL 5 !!

pat davis March 23, 2015 (8:32 pm)

where were signs for public comment? I heard about this potential use many months ago and have diligently looked for Master Use Permit signs (that of course would be readily visible with a reasonable comment time) and I have seen nothing. I most CERTAINLY want to comment against that use of Terminal 5. I have driven down there multiple times and never noticed any signs. Has anyone else seen any inkling (other than it was suddenly vacant?) that something was up ? Pay attention – it’s like the viaduct and the Downtown Merchant Association: money and power ploys at a intensity you cannot imagine (yes, I am serious)

WSB March 23, 2015 (8:47 pm)

The port contends – which is why this legal action was filed – that this does *not* represent a change of use, and therefore it didn’t need to seek a permit. The closure itself (which was reported here and elsewhere, before and after – multiple times in our case, as people kept missing the reports and asking “why is all that space empty”?) did not require a permit – the port just announced it was closing for modernization, gave some briefings, and the tenant moved elsewhere.

Thomas M. March 24, 2015 (11:03 am)

Cargo Port means load stuff on and off of vessels right? Shell wants to use T5 to load stuff on and off of vessels. I did not see that only Politically Correct Cargo is to be loaded and unloaded. Overall the hair splitting is relying on a distinction without a difference. So what exactly is it that Shell is doing with T5 that might be more than that LOCALLY? After all, none of our legislation has any effect outside Washington.

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