What Judges Do -- & What They Can’t Do

The decision yesterday from U.S. District Court Judge Barbara Rothstein, denying the appeal of the wetlands-filling permit for the third runway, reminds us again of what judges do, and what they do not and cannot do. And the decision reminds us, again, of the serious flaws in the way that proposals for big, expensive, damaging, public-works proposals are handled. 

The judges are NOT asked to "approve" projects, such as the third runway. No doubt, the Port of Seattle will say that Judge Rothstein “approved” it, but she did not. The courts are NOT planning agencies – which is probably a very good thing. Whether a project is a good one or a bad one is never the issue in lawsuits such as the one decided yesterday – the issue is whether the permit-granting official or the planning agency has considered everything required of it & used the right legal standards. Put very simply, the question is, Has the agency (in this case, the local office of the Army Engineers) done its paperwork right? Unfortunately, the courts almost never approach that issue independently -- they start with the presumption that the agency HAS done its paperwork correctly.

In the sec. 404 case, the court deferred to the supposed expertise of the Engineers (who admitted that they had never handled such a complex project). The Engineers in turn deferred on various issues to the “expertise” of the Port of Seattle (project sponsor), or the “expertise” of the local FAA (project co-sponsor), or of the Department of Ecology. Ecology of course had already been overruled by the next level of higher authority, the Pollution Control Hearings Board, on 16 important points. Ecology at various stages along the way deferred to the opinions of the Port and the FAA.

No-one conducted a genuinely independent review of the project over-all.  No-one conducted a genuinely independent review of the environmental impacts.  One agency (the PCHB) undertook a genuinely independent review of the water-quality impacts – and ruled against the Port and against Ecology, as noted above, on 16 important points.  [[ link to PCHB order, earlier story / ies ]]

The Power To Say “No”

In fact, there is no independent official or agency with the power to review these big, damaging publicly funded projects on their merits and to say “No” if need be.

Someone with a project to sell is responsible for writing the environmental impact statement for that project. Specialist agencies may comment on particular aspects of an EIS – whether the nesting grounds of spotted owls are at risk, perhaps.  But no-one is in charge of a complete outside review. Such a thing does not exist. The project sponsor decides what alternatives to consider in the EIS, & only those that it selects are considered. In fact, in the case of the third runway, the courts have ruled that the only alternatives that need be considered are ones that the Port of Seattle itself is willing to undertake! The project proponent may be asked to prepare a costs-benefits analysis, but that’s not a requirement of the State Environmental Protection Act or its federal equivalent. If the numbers in a costs-benefit analysis don’t pencil out, then the sponsor talks about intangible benefits (while ignoring “intangible” costs) – and according to Judge Rothstein, intangible benefits are enough to justify a project that might otherwise not amount to a public benefit.

With no-one except the project sponsor actually in charge, the justification for a project like the third runway is whatever the sponsor (in this case, Port of Seattle) chooses to say at the moment.

If One Story Doesn’t Work, Try Another

Originally, the third runway was sold as a project to enhance capacity at Sea-Tac–-to bring in more planes & more passengers. That turned out not to be the case. So then the “reason” was to cure delay–-at an airport with a one percent delay factor. Well, it’s delay in peak travel periods with bad weather. Well, Sea-Tac’s peak period is August – where’s the bad weather? No answer. How many flights are actually delayed? No answer. Then the excuse became the dollar cost of delay, which of course was vastly exaggerated. And when would that delay occur? Some time in the far future. When? Hard to say, for not one of the official projections of future travel demand at Sea-Tac has ever been right, or even close to right.

Then at the Legislature this spring the runway became a jobs program (short-term work assignments for a few hundred Teamsters). That got laughed down. So now, we read in Judge Rothstein’s opinion, the Port has turned to “intangible benefits”, which cannot be quantified–- and the Engineers should defer to the Port’s judgement about the importance of those “intangibles”, & the court should defer to the Engineers’ deferral to the Port. And suddenly, it’s also a safety measure (a case never proven, & in fact never seriously examined in any of the dozens of documents that have come our way). And–-another intangible benefit, another afterthought–-it’s a question of making travelers feel good about air travel. Obviously, this is all nonsense, but there’s no-one who has the right to say, “This is a bad project, & it has to stop”-– no-one except the Port Commissioners, & certainly NOT the judges.

Under the present system, huge airport projects like the third-runway get the OK of a regional FAA office, but are not approved at the central headquarters at any level, not  by the Administrator of the FAA, to say nothing of review by a Cabinet-level officer. Yet, that same regional FAA office is also a sponsor of the project. In many cases, a regional FAA office is the outfit that initially suggests a particular airport project to an airport operator. It then works with the airport to develop the plans, & to prepare the EIS, & then it reviews the project for an FAA OK, & for federal grants!

Until this lop-sided system is fixed, we will continue to see unending controversy over public-works projects, especially those with dubious benefits, huge ongoing impacts on people’s daily lives, out-of-control budgets & voo-doo financing, grave potential for environmental harm in the immediate vicinity, and almost total lack of mitigation. The courts do not have the tools to fix this mess. Lawsuits can only chip away at the fringes of the problem, seeking to require project proponents & their partners in permitting agencies to re-do work that is overly slipshod. The courts do not have the power simply to say “No”. That’s up to the public.