King County Superior Court Judge Mariane Spearman will decide whether the port acted improperly to bypass the environmental review when entering into the Terminal 5 lease with Foss Maritime.
By Coral Garnick, March 20, 2015, Seattle Times
A King County Superior Court judge said Friday she would take the case a coalition of environmental groups brought against the Port of Seattle and Foss Maritime for a lease between the two that includes using Terminal 5 as a mooring station for Shell Oil’s Arctic drilling fleet.
During last week’s hearing, the coalition argued the court should vacate the lease based on violations of the State Environmental Policy Act and the Shoreline Management Act. They say that basing Shell’s fleet at Terminal 5 will fundamentally change its use as a cargo terminal, which would require a new environmental review.
The port has maintained it is exempt from conducting another environmental review because Terminal 5 will still be used as a cargo terminal.
Port chief executive Theodore Fick signed the lease with Foss on Feb. 9. The terms say Foss will pay $13.17 million over two years to use 50 acres of the 156-acre terminal.
King County Superior Court Judge Mariane Spearman wrote in her decision that the activities proposed for Terminal 5 under the Foss lease “appear to be qualitatively different from Eagle Marine Services’ previous use of Terminal 5 as a marine container terminal,” and “the permitted uses under the terms of the lease seem to contradict the expected uses outlined in the Port of Seattle’s staff briefing memo.”
The judge wrote that she will not rule on whether the port violated the Shoreline Management Act by not seeking a permit revision. She agreed with the port that there is no private right of action to enforce it. The port had argued, that enforcement, if needed, would be handled by the City of Seattle or Department of Ecology.
Seattle Mayor Ed Murray asked the Department of Planning and Development on March 9 to “review, investigate and determine” whether the plan is allowed under the Port’s Shoreline Substantial Development Permit for Terminal 5.
Patti Goldman, the EarthJustice attorney for the coalition, said the shoreline permits are evidence of the previous use and will still be relevant in the case to provide context.
There will not be a trial, jury or depositions. The judge will decide whether the port acted arbitrarily, capriciously or illegally when it relied on an exemption — that the use of Terminal 5 will remain the same — to bypass the environmental review when entering into the lease with Foss. Goldman said she is trying to move the case as quickly as possible so a decision can be made before the vessels arrive.
It is not yet public when that is planned. David West, the Foss Maritime attorney, told the judge last week the company wants to keep that information private.
Foss spokesman Paul Queary said 63 employees at the Vigor Industrial shipyard are building equipment needed to moor one of the vessels and roughly 100 people at the site itself in various capacities, he said.
“We are confident that our use of terminal 5 will be in compliance with its current permit and we will show that in court,” he said.