Legal study offers County Council ideas on a more permanent oil-transport impact solution

BELLINGHAM — The Whatcom County Council, on a 5-2 vote Feb. 27, again extended an interim moratorium on new permits for shipment of unrefined fossil fuels at Cherry Point for another six months.

The council’s action followed a presentation by Rodney Brown, representative of the Cascadia Law Group, hired by the county in 2017.

He presented findings of a contracted study into the county’s authority in preventing potential negative impacts from companies transporting fuel — using pipelines, trains or other means — in Whatcom County, and what the council could face if they limit fossil fuel facilities.

Before providing recommendations to the council, Brown spoke of the Commerce Clause in the U.S. Constitution, a prominent law (among many others) affecting the county’s attempt to limit fuel transport.

The Commerce Clause acts as a safeguard against any state or local regulation causing disruption of interstate business and instead protects business between states and commerce abroad.

“If you’re looking at some of these rail or pipeline or other kinds of transport projects, they frequently are interstate,” Brown said. “That’s going to mean the federal Constitution protects them in a way that a purely local project is not protected. You have much more power to do what you want to do with a purely local project.”

Brown offered different avenues the council could take if deciding to pursue permanent limits on fuel exports.

These include bolstering county authority, using conditional-use permits and prohibiting a defined set of uses in zoning code and shoreline regulations.

Brown said the county could add more protections in the permitting process or increase the amount of process involved, using the protections while considering an individual permit’s impacts.

“You can decide to be more prescriptive upfront and say ‘here’s what the rules are,’ or you can decide to be less and have an even more open-ended agreement than what we said,” Brown said.

A more detailed online report, “Reducing Impacts from Fossil Fuel Projects” by the Cascadia Law Group, can be found online at

In public comment, many of the same arguments made at prior public hearings on the Cherry Point moratorium surfaced. One side argues that the moratorium is necessary for safety of the environment and the community. The main counter argument is that the ban would harm local business by disallowing the expansion of companies, such as the two refineries already at Cherry Point.

Council member Todd Donovan argued against the latter claim, saying the restriction isn’t to hinder local business, but to allow the county to better prepare as more rail traffic and pipelines are “pointed at Whatcom County.”

He said the county isn’t yet equipped to deal with a potential uptick in oil transport in regard to the liability and public health and safety issues involved and the aftermath of any potential accident.

“It’s not the operations in BP,” Donovan said. “It’s not what’s going on in BP as a quality facility. It’s what has changed just in the last couple of years in terms of the projects that are being targeted here, and our ability to deal with major permits or our inability to deal with that.”

Council member Barbara Brenner spoke against the motion to extend the moratorium, saying the industry was being blamed for environmental issues when other factors played a bigger role.

“We have the very best refineries in the world, not just in this country,” Brenner added. “When we don’t refine stuff here, it gets refined west of us. And then we get it shipped back to us with all the acid products and pollution that come with it.”

Councilor Satpal Sidhu gave his vote for the ban, but pushed that all sides of the argument — including those of the petroleum industry — need to come together in finding a solution.

“We have the ability to sit down together and find solutions, but both parties have to participate,” Sidhu said. “Not one.”

It was loosely discussed before the meeting adjourned that the council may use the legal study findings to craft an ordinance before the extended moratorium expires at the end of August.

Off-road vehicle trails

The second half of the seven-hour night was full of public comment on the Department of Natural Resources’ move to amend off-road vehicle restrictions on commercial forest land — specifically Red and Sumas mountains, which were planned options for motorized trails.

The outcry of comment against the change prompted the County Council to vote against the idea, too.

“The county made it clear,” said Tim Stapleton, recreation manager for DNR. “As of this point they don’t want to see ORV recreation in Whatcom County. Any forward movement on ORV trails being built would have to result in the county ordinance change.”

The planning process for what to do with 86 acres of state-owned forestry near Sumas and Everson has been two years in the making. The project Baker to Bellingham Recreation Plan has been in development by the Washington State Department of Natural Resources since 2016.

DNR concept maps D and E, current draft concepts under review as of Jan. 30, show a motorized trail system planned out for only Sumas Mountain (Plan D) or for both Sumas and Red Mountains (Plan E).

“Everyone deserves access. There is plenty of room. Quit with the ‘I don’t want it so you shouldn’t have it’ attitude,” reads one written comment of the Feb. 21 community planning meeting, speaking on proposed off-road vehicle trails.

Stapleton said the department will take public comments and the council’s action into consideration as they move forward in planning. He added that a final planning map is anticipated by this summer and should be approved by winter time.