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Both the Airport Communities Coalition
and the RCAA expressed disappointment at a decision by
U.S. District Judge Barbara
Rothstein, filed late on Monday, 18 August, in which she
rejected an appeal of the wetlands-filling permit issued
to the Sea-Tac third-runway project by the Army Corps of
Engineers in December 2002. The Airport Communities Coalition
said that the decision “is not a green light” for the runway
project, while reserving its decision on whether to appeal
to a higher court.
Relying on narrow technical grounds,
Judge Rothstein’s
ruling results in an apparent “win” for the Port of Seattle,
but also presents an opportunity for the project opponents
to seek a different result from the Army Engineers, & also
grants Federal recognition that last year’s rulings by
the state Pollution Control Hearings Board will govern,
in case of conflict between the Engineers’ weaker conditions
and the stronger requirements of the State.
New Data Don’t Count in Court,
But Try Again
She dismissed the claim by ACC
that the Engineers should have considered new air-travel
data that have come to light
since the permit application was filed two-plus years ago.
The Corps’ permit is based on projections of very high
levels of travel in the future, but since Spring 2001,
air travel has been on the decline, with recovery to Year-2000
levels not in sight. The Engineers had the right to rely
on the older data, as they were when the application was
complete, Judge Rothstein ruled (even though many other
items of new information on other subjects were received & considered
by the Engineers after the permit application was final).
She said, however, that the Airport Communities Coalition
could ask the Corps to examine the new data as part of
a pending request to the Engineers for reconsideration, & she
wrote that if the Corps refused to consider those new data,
that refusal could be challenged in a further judicial
appeal. She declined to look at the new data, because they
raised a fact issue, which was not appropriate for the
court to consider. So, it isn't over, even with the Engineers
and the Federal courts.
“Unacceptable, but not the end of the story” is the reaction
from the Regional Commission on Airport Affairs to the
over-all decision. “We are shocked to hear of this decision,” said
Larry Corvari, president of the citizen group. “It was
simply wrong for the Army Engineers to issue a permit to
the Port of Seattle to fill wetlands, dump poisoned dirt
on aquifers, divert a salmon-bearing stream, destroy more
than 20 acres of wetlands, all without requiring the Port
to obey the stringent environmental conditions previously
laid down by the State. The Engineers and the district
court have failed in their duty to protect the environment.
But this isn’t the end of the story. The runway project
is still at a dead stop – and no hope in sight.”
The group was highly critical
of the work done by the Army Engineers in granting a
permit to the Port for filling
wetlands and increasing water pollution. “The Engineers
have accepted assurances and mitigation proposals from
the Port of Seattle and its consultants that simply won’t
do the job. The present plans will not fix the problems
and harm that will surely result.”
“The Army Engineers should have held the Port of Seattle
to the letter of the law. They didn’t. And the District
Court should have held the Engineers to the law – and didn’t.
It is distressing that a judge would rule that the Engineers
can simply ignore the ruling last year from the State Pollution
Control Hearings Board that the runway project needed numerous
stringent conditions.”
OK To Rely on Faulty Rulings by Ecology
Judge Rothstein ruled that the
Engineers had discretion to accept the “expertise” of the Department of Ecology
on several critical issues, even though the Department
had been overruled on those very points by the State’s
reviewing authority, after a full trial. Observers commented
that for the Engineers to rely on rulings that had already
been overturned on appeal would appear to be a clear abuse
of discretion.
Yesterday’s decision highlights a difficult problem that
arises when billion-dollar proposals are supposed to deal
with moving targets. Predictions of arrival delay at Sea-Tac
are partly dependent on projections of over-all traffic
(though the critical factor is the numbers of arrivals
per quarter-hour time segments). In the last 15 years,
the Port & its consultants, the local FAA, the Puget
Sound Regional Government, the central headquarters of
FAA, & others have made many predictions as to future
travel demand at Sea-Tac. No-one has ever gotten it right.
The numbers are all over the map, constantly changing,
as world & regional business conditions change, as
airlines change their ways of doing business, to say nothing
of rising or falling fuel prices, international politics,
earthquakes, terrorist attacks … . .If there’s no certainty
as to future air travel, how can there be certainty in
claims of future delays in air travel? How can reasonable
environmental impact statements be written? Judge Rothstein’s
solution: Take whatever figures are offered at the time, & don’t
accept any future changes. That’s convenient for administrative
purposes, but doesn’t offer much of a clue as to reality.
No Decision “On the Merits”
The judge did NOT say that the
Engineers' permit was a good one, or a bad one. She made
it clear that it is not
the job of the judiciary to make those calls. The judge’s
task is to decide whether the papers in the file show that
the Engineers had all the relevant issues under consideration.
If different experts have different views on a particular
subject, it is NOT up to her to decide which expert is
right – the Engineers can make such decisions. It is of
no concern to the court that on every call the Engineers
took the pro-project or anti-environment point of view.
Perhaps the most important point
in the 43-page decision was the court’s recognition that the PCHB laid down tougher
conditions then the Engineers, & that the Port has
to comply with those tougher conditions, no matter what
the Engineers say. To escape from those conditions, the
Port would have to convince the State Supreme Court NOT
to defer to the expertise of the PCHB – a hard sell.
No Surrender
RCAA pledges continued opposition.
Mr Corvari said, “Citizens
have been concerned, worried, about this runway project
since it first came to light in the late 1980s. We cannot,
we will not, simply stand aside, just because of this unfortunate
ruling. We have too much at stake – billions of dollars
in harm, much of it irreparable, and the Port offers far
too little to protect us.” He added, “We expect that the
State Supreme Court will uphold the actions of the State
Pollution Control Hearings Board, and that the Port will
have to try to meet the requirements of State law for protection
of the environment. Good luck to them!”
“This runway project is a horror for our communities. It’s
five times over budget already. Big cost items still haven’t
been disclosed. Proper environmental plans – if the Port
can figure them out -- will add even more costs. The runway
isn’t needed, and there’s no sign that it ever will be
needed. The damage to the communities would be enormous.
And the Port of Seattle has no plan, no budget, for dealing
with the harm.”
Who Will Offer $800 Million?
Asked what would stop the project,
Mr Corvari said, “Remember,
they underestimated the cost of this mess by at least a
factor of five. They’ve only brought in about one-fifth
of the fill that they need for that huge embankment. By
their own optimistic figures, they need something like
$700 million or perhaps $800 million to proceed to completion.
They’ve tapped out FAA grants, passenger charges, and so
on. And then they raised real-property taxes on everyone
in King County. Where will they go next? Who wants to
put $800 million into this foolishness? And who will step
up and provide a couple of billions in compensation for
the damages? We all know what a sorry state the airlines
are in. The Port loses money on everything it does, so
they don’t have any spare revenue – except real-estate
taxes. Uncle Sam seems to have empty pockets, too. Maybe
the Legislature will bail them out? Or King County? Or
will they have to resort to car washes & bake sales?”
ACC: No Green Light for Runway Construction
The Airport Communities Coalition
said, in a prepared statement, “While we are disappointed
in Judge Rothstein's decision, it is important to note
that the Port still does
not have a green light to begin construction on the proposed
third runway at Sea-Tac International Airport. Judge Rothstein's
decision was based on a very narrow review of the record
rather than an analysis of the scientific evidence put
forth. The ruling basically said that the Army Corps of
Engineers did not act arbitrarily or capriciously in issuing
the construction permit and that the court would not consider
scientific disagreements related to the issues surrounding
the controversial third runway project.
“In the ruling the court also
rejected the arguments of the Airport Communities Coalition
and State Attorney General
that the federal permit should incorporate all of the environmental
protections mandated by the State Pollution Control Hearings
Board. The court ruled that because the PCHB decision came
a little more than a year after the permit application
was filed, the Corps of Engineers could pick and chose
from the environmental conditions imposed by that state
agency.
“The ACC is disappointed that
the court chose to base this decision on narrow procedural
matters rather than
consider the substantive issues raised by the ACC and State
Attorney General.
“However, the real issues in this
case involve the important environmental protections
mandated by the State Pollution
Controls Hearings Board and the Port's refusal to comply
with them. This is the issue that the State Supreme Court
will address when they take this matter up later this year.
Until that issue is settled the Port is no further ahead
than before this latest court decision.”
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