The doctrine and practice of public trust

I have posed a question to Governor Inslee’s Chief of Staff regarding the process by which industry and agency are violating the public’s trust by allowing industry to use segmentation to get their projects through.

This question doesn’t come out of nowhere. In March of 2017, a conference was held titled “Permitting Strategies for Large, Controversial Projects in Washington State and the Northwest.” A key representative from the City of Tacoma’s planning department presented.

On it’s face, this shouldn’t be problematic. Industry and agency, collaborating to make headway in getting industrial projects underway and putting people to work, shouldn’t be something that is bad for the public. It also shouldn’t lead to a violation of the public’s trust. However, underlying this seemingly benign process is the reality that industry is abusing loopholes in policies, codes, and regulations in order to bypass oversight and proper evaluations of their projects. How are they being allowed to do this? It’s a very complicated process, getting projects permitted. And it should be!

Segmentation is the process by which industry puts their projects in action, by permitting them in pieces (segments). Often just under the criteria that would trigger environmental and health studies. So, for example, a pipeline project exceeding 400’ would trigger an environmental study. Industry will permit their 2000’ pipeline 395’ at a time, in order to avoid the study.

This is how the pipeline for the LNG project was permitted. The permits were issued from different governing agencies, which might make ‘sense’ on the face, given that it flows through different jurisdictions, but knowing that the pipeline was only reviewed a segment at a time, with evaluations done only for the smaller segments, makes the public very nervous about the quality of the inspections and evaluations. There was no EIS and the project was documented as being “fast tracked” through the permitting process. 

In fact, there is an inspection requirement that cannot be completed until oil actually runs through the pipeline. Currently, there has been no product flowed through the pipeline, but the pipeline is covered up with asphalt. It’s in the ground. Will we see the pipeline dug up when it’s time to run the product through to the LNG plant for the inspection? Who will inspect it? One agency? All agencies? What if there is a leak in a segment of the pipeline? Does that mean that oil will not be able to flow through the pipeline? 

When industry utilizes segmentation inappropriately they are violating the public’s trust. When agency allows industry to utilize segmentation, they are violating the public’s trust. The public trusts that eliminating the intense studies required for larger projects from smaller projects allows for the smaller projects to not be unnecessarily burdened. The public trusts that smaller projects will not have severely adverse effects on human and environmental health. Simply, smaller projects bypassing intense oversight is to not impede economic and developmental progress.

Segmentation is supposed to be an act of common sense, not a loophole that industry can use to avoid proper oversight and important studies of their projects impact on human and environmental health. When industry utilizes segmentation, they are proving how much they do not care about impacts to human and environmental health.

We know that the pipeline in support of the LNG project was put in the ground, permitted in segments. We also know that the proposal that industry initially submitted for the LNG project was subject to an EIS review that does not address the same project being built today. We know that our state environmental agency gave lead agency status to a city agency. We also know that city agency was ill prepared to conduct a fair and proper technical evaluation of such a huge project, with huge environmental impacts. We know this because they were unable to answer many of the questions put forth by citizens. An outside consulting firm was hired to answer a good portion of the questions. We also know that they didn’t have a land use attorney on staff for a whole year. That lack of oversight from a technical perspective does not lead to a robust trust on behalf of the public.

City representatives almost immediately adopted a paternalistic and patronizing approach to answering citizen’s questions. To this day, city representatives claim that they trust, without limit, the decisions of their internal representatives. Despite the fact that there is plenty of citizen-provided information that contradicts the information that industry has provided.

Additionally, discovering that a city representative has participated in instructing industry how to get their controversial projects through is deeply disturbing to the trust that the public has with public agencies. The conference was not made generally available to the public. The conference required a fee of over $200 per person and appears to have been open mostly to industry and agency. I wonder if that agency representative would be willing to give the same presentation to the citizens as what was presented to industry representatives at that conference.

There is public trust. And there is public trust doctrine.
CPR_Public_Trust_Doctrine_Manual

Public trust doctrine is a complicated issue, and there are several seminal cases which have set the tone for how the public must be informed and their resources protected for future use.

Similarly, litigating the public trust doctrine has also resulted in government accountability and citizen empowerment by permitting citizen suits against the state for failure to uphold trust duties. For example, a recent California appeals court decision affirmed the right of citizens to sue the state for failing to uphold trust duties. In this case, the state’s public trust duty involved protecting wildlife – raptors and other birds – from death and injury by turbines on private wind farms. A beneficiary of any legal trust can sue the trustee for harm to the trust principal, and the California court affirmed that members of the public may do likewise by suing the appropriate state agency. Other states, such as Michigan, Minnesota, Connecticut, and South Dakota, have explicit statutes that permit citizen suits against the state and private parties for violation of public trust duties. (Klass and Huang, 2009 “Restoring the trust: Water resources and the public trust doctrine, a manual for advocates)

This is somewhat good news for those who are worried about salmon, orcas, all creatures in the Salish Sea, and the water tables that contribute to a healthy Salish Sea. However, because it is a complicated issue, we have to be very clear and concise about how we argue the violation of our trust. Not only in practice, but by doctrine.

 

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