COLUMBIA RIVERKEEPER, and NORTHWEST ENVIRONMENTAL DEFENSE CENTER, Petitioners,
PORT OF VANCOUVER USA; JERRY OLIVER, Port of Vancouver USA Board of Commissioners President; BRIAN WOLFE, Port of Vancouver USA Board of Commissioners Vice President and NANCY I. BAKER, Port of Vancouver USA Board of Commissioners Secretary, Respondents. SIERRA CLUB, Plaintiff,
case involves a dispute about how the regulatory schemes of
the State Environmental Policy Act (SEPA), chapter 43.21C
RCW, and the energy facilities site locations act (EFSLA),
chapter 80.50 RCW, apply to a lease agreement between
respondents, the Port of Vancouver USA and its board of
commissioners (Port), and Tesoro Corporation and Savage
Companies (hereinafter Tesoro). The lease agreement permits
Tesoro to construct a petroleum based energy facility on the
Port's property. The agreement remains contingent on
review by, and certification from, the Energy Facility Site
Evaluation Council (EFSEC), the primary decision-making
authority in the field of energy facilities siting and
regulation under EFSLA.
incorporates by reference numerous regulations from SEP A,
including WAC 197-11-714(3) and -070(1)(b) which preclude
agencies "with jurisdiction" from taking actions
that would "[l]imit the choice of reasonable
alternatives" prior to the issuance of an environmental
impact statement (EIS). The Port entered into the lease
agreement with Tesoro prior to EFSEC's issuance of an
EIS. Columbia Riverkeeper, Sierra Club, and Northwest
Environmental Defense Center (hereinafter Riverkeeper) sued
the Port, alleging, inter alia, that the lease agreement
limited the choice of reasonable alternatives available to
the Port, thereby violating SEPA.
summary judgment, the trial court dismissed Riverkeeper's
SEPA claims in favor of the Port, holding that the
contingencies contained within the lease preserved reasonable
alternatives available to the Port. The Court of Appeals
affirmed, concluding that the lease did not violate SEPA,
although it did so by finding WAC 197-11-070 and its
"reasonable alternatives" provision applied only to
EFSEC and the governor, rather than the Port, and the lease
did not limit EFSEC 's or the governor's
choices of "reasonable alternatives." Columbia
Riverkeeper v. Port of Vancouver USA, 189 Wn.App. 800,
817, 357 P.3d 710 (2015), review granted, 185 Wn.2d
1002, 366 P.3d 1243 (2016).
assessing the Port's compliance with SEPA, we must
address the question whose reasonable alternatives
cannot be limited? We affirm the holding of the Court of
Appeals. The Port's lease with Tesoro does not violate
SEPA. But we do so on the trial court's grounds. WAC
197-11-070 applies to all agencies with authority to
"approve, veto, or finance all or part" of a
project, which includes the Port. WAC 197-11-714(3), Because
the Port's lease is subject to the condition precedent
that EFSEC and the governor approve the project, inclusive of
EFSLA's stated environmental priorities and EFSEC's
environmental review function, and the Port retains mutual
authority to approve development, construction, and
operations plans for the facility, the Port did not violate
WAC 197-11-070 when it entered into the lease prior to
EFSEC's completion of an EIS.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
October 2013, the Port entered into a lease agreement with
Tesoro. The agreement permits Tesoro to construct a petroleum
based energy facility on the Port's property along the
Columbia River that would be capable of receiving by train up
to 360, 000 barrels of crude oil per day. The terminal could
also store up to two million barrels of crude oil or other
petroleum products in above ground tanks. The facility would
store and blend petroleum products before loading them for
shipment by rail or by marine vessel via the Columbia River.
lease contains a preliminary, but comprehensive, description
of the facility. The Port and Tesoro must mutually approve
final "specifications and designs ... for the
development, construction, and operation of the
Facility" and "work diligently and in good
faith" to finalize the plans. Clerk's Papers (CP) at
288-89. According to the lease, Tesoro may not occupy or
develop the property until Tesoro has obtained "all
necessary licenses, permits and approvals ... for the
Permitted Use, " which necessarily includes EFSEC
certification. CP at 288. If "any or all of the
conditions precedent" noted above are not satisfied,
either party may terminate the lease. CP at 281, 288.
initiated the energy site certification process by contacting
EFSEC and informing it of the facility plans. EFSEC
determined that the energy facility would likely have a
significant adverse impact on the environment, which
necessitated completion of an EIS pursuant to RCW
43.21C.030(2)(c). In its Determination of Significance
Scoping Notice, EFSEC designated itself as the lead SEPA
agency for preparing the EIS. CP at 170. The Determination of
Significance Scoping Notice also scheduled the initial SEPA
hearings to begin on October 28 and 29, 2013, approximately
one week after the Port and Tesoro executed the lease. CP at
169. When this case began, the SEPA environmental analysis
initially brought suit against the Port on October 2, 2013,
alleging that the Port had excluded the public from
deliberations concerning the lease and thereby violated the
Open Public Meetings Act of 1971 (OPMA), chapter 42.30 RCW.
After the Port and Tesoro executed the lease, Riverkeeper
amended the complaint to include two SEPA violations. First,
Riverkeeper complained that the Port violated SEPA because it
executed the lease prior to completion of the EIS. Second,
Riverkeeper alleged that the Port's execution of the
lease constituted an "action" under SEPA, and that
the "action" limited the choice of reasonable
alternatives before the completion of the EIS in violation of
WAC 197-11-070. CP at 14-15. In all, the amended complaint
included six claims.
Port moved for summary judgment on all six claims. The trial
court dismissed both SEPA claims, but reserved judgment on
the four OPMA claims pending additional discovery. On the
first SEPA claim, the trial court reasoned that the Port did
not violate SEPA because under EFSLA, the lease was exempt
from the EIS requirement. On the second SEPA claim, the trial
court concluded the contingencies in the lease guaranteed
that it did not limit the reasonable alternatives under
SEPA. CP at 991. The trial court also found the
SEPA claims were of "substantial public importance"
and granted Riverkeeper's CR 54(b) motion for immediate
appeal. CP at 1016.
unanimous published opinion, the Court of Appeals affirmed
the trial court's summary judgment decision.
Riverkeeper, 189 Wn.App. at 800. As to the first
SEPA claim, like the trial court, the Court of Appeals found
that there was no SEPA violation because EFSLA exempts the
lease from the EIS requirement. Id. at 813.
Regarding the second SEPA claim, the Court of Appeals, in
departing from the trial court's grounds, ruled that when
a project, like the one at issue, is subject to EFSLA, SEPA
precludes only actions that limit the reasonable alternatives
available to EFSEC and the governor. Id. at 817-18.
Whether the Port's reasonable alternatives were limited
by entering into the lease was, therefore,
"immaterial" to the Court of Appeals. Id.
Court of Appeals reached this holding by first concluding the
regulations under SEP A and EFSLA were in conflict and, as a
result, the SEP A regulation at issue-WAC 197-1
l-070(1)(b)-did not unambiguously provide
which agency's alternatives cannot be limited.
Id. at 816. It went on to resolve the ambiguity
through application of the general-specific rule. The court
held that EFSLA, as the more specific regime, applied.
Id. at 817. And because EFSLA vested discretion
solely within the governor and EFSEC, WAC 197-1 l-070(1)(b)
limited only the alternatives of EFSEC and the governor.
Id. at 816-18.
only Columbia Riverkeeper and Northwest Environmental Defense
Center appeal, and they do so on just the second SEPA
claim-whether the Port violated WAC 197-11-070 by entering
into the lease prior to EFSEC's issuance of an EIS
because the lease limits the Port's reasonable
alternatives. We granted the petition for review.
Riverkeeper, 185 Wn.2d at 1002.
SEPA and EFSLA regulations conflict?
WAC 197-11 -070(1)(b) apply to the Port?
the conditions precedent clause and the Port's retained
mutual approval authority within the lease satisfy the
Port's obligation under the regulation's
"reasonable alternatives" provision?
review the propriety of summary judgment rulings de novo,
viewing the facts in the light most favorable to the
nonmoving party. Summary judgment is proper when there is no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law." Save Our
Scenic Area v. Skamania County, 183 Wn.2d 455, 463, 352
P.3d 177 (2015). Neither party contends a genuine issue of
material fact remains. At issue is the interpretation of WAC
197-11-070(1)(b) and its application to the lease between the
Port and Tesoro.
and regulatory interpretation is a question of law that we
also review de novo. Jametsky v. Olsen, 179 Wn.2d
756, 761-62, 317 P.3d 1003 (2014) (citing Dep't of
Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43
P.3d 4 (2002)); City of Seattle v. Burlington N. R.R.
Co., 145 Wn.2d 661, 665, 41 P.3d 1169 (2002). We
interpret administrative regulations using rules of statutory
construction. Overlake Hosp. Ass'n v. Dep't of
Health, 170 Wn.2d 43, 51, 239 P.3d 1095 (2010) (citing
City of Seattle v. Allison, 148 Wn.2d 75, 81, 59
P.3d 85 (2002)). The purpose of our inquiry is to determine
legislative intent and interpret the statutory provisions in
such a way so as to carry out that intent. Jametsky,
179 Wn.2d at 762. If possible, we give effect to the plain
meaning of the statute as a pronouncement of legislative
intent. Id. When attempting to ascertain a
statute's plain meaning, we may consider the
"context of the entire act as well as any 'related
statutes which disclose legislative intent about the
provision in question.'" Id. (quoting
Campbell & Gwinn, 146 Wn.2d at 11).
statute is subject to more than one reasonable
interpretation, we consider it ambiguous. Id.
(citing City of Seattle v. Winebrenner, 167 Wn.2d
451, 456, 219 P.3d 686 (2009)). After determining that a
statute is ambiguous, "we 'may resort to statutory
construction, legislative history, and relevant case law for
assistance in discerning legislative intent.'"
Id. (quoting Christensen v. Ellsworth, 162
Wn.2d 365, 373, 173 P.3d 228 (2007)).
and EFSLA regulations do not conflict
provides decision makers with the environmental impacts of
legislature enacted SEPA in 1971 to inject environmental
consciousness into governmental decision-making. See
WAC 197-11-714(1). SEPA was intended
(1) [t]o declare a state policy which will encourage
productive and enjoyable harmony between humankind and the
environment; (2) to promote efforts which will prevent or
eliminate damage to the environment and biosphere; (3) and
[to] stimulate the health and welfare of human beings; and
(4) to enrich the understanding of the ecological systems and
natural resources important to the state and nation.
RCW 43.21 CO 10 (alteration in original). SEPA expressly
acknowledges that "each person has a fundamental and
inalienable right to a healthful environment and that each
person has a responsibility to contribute to the preservation
and enhancement of the environment." RCW 43.21C.020(3).
SEPA's primary focus is on the decision-making process.
24 Washington Practice: Environmental Law And Practice §
17.1, at 192 &n. 8 (2d ed. 2007) (citing Save Our
Rural Env't v. Snohomish County, 99 Wn.2d 363, 662
P.2d 816 (1983)). As such, SEPA seeks to ensure that
environmental impacts are considered and that decisions to
proceed, even those completed with the knowledge of likely
adverse environmental impacts, be "rational and
well-documented." Id. at 192.
requires that agencies complete an EIS prior to undertaking
"major actions significantly affecting the quality of
the environment." RCW 43.21C.030(2)(c). The EIS is to be
completed by the "responsible
official" and must include
(i) the environmental impact of the proposed action;
(ii) any adverse environmental effects which cannot be
avoided should the proposal be implemented;
(iii) alternatives to the proposed action;
(iv) the relationship between local short-term uses of the
environment and the maintenance and enhancement of ...