In a sharply worded 13-page ruling, Federal District Court Judge Robert H. Whaley has concluded the U.S. Department of Transportation has complied with federal environmental rules and can proceed with a controversial road expansion project in eastern Spokane County.

The Bigelow Gulch Road/Forker Road Urban Connector is part of the Spokane Corridor Project that will connect Interstate 90 to U.S. Highways 2 and 95. The project would widen the road from two lanes to four and increase its length by nearly a third.

On behalf of Orchard Prairie residents who’d be affected by the expansion, the Center for Justice brought suit against DOT, arguing that it had failed to comply with the National Environmental Policy Act (NEPA) and agency rules guiding NEPA compliance.

But in his ruling issued Monday, Judge Whaley roundly rejected the Center’s arguments on all fronts. Whereas the Center argued that a full Environmental Impact Statement was warranted, the judge ruled that a more cursory Environmental Assessment (EA) was adequate and within the agency’s discretion. He also agreed with Assistant U.S. Attorney Andrew S. Biviano that DOT’s findings of no significant impacts in areas contested by the suit to have been appropriate. Moreover, Judge Whaley repeatedly sided with Biviano in the disputes over whether the EA, in final form, was responsive to public comments and early internal criticism by a DOT lawyer that it was inadequate in several areas of real and potential environmental impacts.

“Plaintiff’s best argument,” Judge Whaley wrote, “is that Defendants failed to consider a 35 mph speed limit alternative along the entire corridor, which could arguably serve the project’s stated goals with less impact. Plaintiff’s are correct that the final EA does not evaluate this alternative.” But, he added, “[V]iewed as a whole, the record demonstrates that Defendants adequately considered alternatives. The final EA actually seems to go well beyond the ‘brief discussion of reasonable alternatives’ required by the case law. And the Court finds the decision to reject the 35-mph alternative as unreasonable to be within the agency’s discretion.”

–CFJ

Rural Organizing Project (Oregon) leader Marcy Westerling will be the keynote speaker Saturday when the Peace and Justice Action League of Spokane hosts a day-long conference aimed at informing and empowering citizen activists.

Marcy Westerling

The conference is at the Messiah Lutheran Church 4202 North Belt Street, from 8 a.m. to 5:30 p.m. on Saturday but it will begin with a “Hands on Reception” Friday evening, featuring an interactive discussion led by Ms. Westerling.

Topics for the Saturday conference include:

*Immigration
*Online Organizing
*Police Accountability and Criminal Justice
*Progressive Tax Reform in Washington
*Nonviolence and Social Change
*Palestine
*War and Peace
*Campaign Financing
*Rural Organizing
*Community Organizing

The conference registration fee of $35 ($15 for students, $20 for PJALS members) covers the plenary, three workshops, breakfast and lunch.

click here to download the flyer and registration form.

As the March 19th deadline for public comments on the U.S. Department of Energy’s Hanford cleanup plan approaches, activists in Seattle are working hard to boost public interest in the controversial proposal. With the final public hearing on the plan scheduled for Seattle this coming Monday, March 8, Heart of America Northwest is hosting what it bills as a “Hanford Follies fun and interactive” workshop, complete with improvisational comedy and free coffee.

Work at a Hanford waste tank farm last summer.

It’s a creative approach to what is, by any stretch an important and somewhat overwhelming issue. Hanford is the home to the largest collection of radioactive and hazardous wastes in the western world. The Energy Department’s preference is to not only leave large amounts of contaminated soil at Hanford, but to ship additional amounts of radioactive and chemical waste to the site. To put it mildly, the plan is not playing well around the region. And if you’d like to add your opinions to the record, there’s still time to do by sending them to:

Mary Beth Burandt
Document Manager
U.S. Department of Energy
Office of River Protection
PO Box 450, Mail Stop H6-60
Richland, WA 993534

email: TC&WMEIS@saic.com

The Energy Department’s plan is in the form of a 6,000 page draft Environmental Impact Statement, literally a document heavy enough to bust a shelf off a wall. A much shorter, four page primer on the issues and options has been compiled by our good friends at the Hanford Challenge.

If you’re in Seattle on March 8th and want to give your thoughts live and in person, the hearing is scheduled for the Seattle Center Northwest Rooms at First Avenue and Republican, near the Key Arena. A pre-hearing workshop begins at 6 and the hearing itself an hour later.

–CFJ

The White House announced Wednesday that Mike Ormsby, a Spokane-based attorney for K & L Gates, has been nominated by the President to be the next U.S. Attorney for the Eastern District of Washington.

Ormsby is a 1979 Gonzaga University graduate and 1981 Gonzaga School of Law graduate. His brother Timm Ormsby currently serves in the Washington state legislature.

Today’s announcement by the White House comes a year after U.S. Senator Patty Murray confirmed that Ormsby’s name had been forwarded to the President by the Senator, who has strongly endorsed him for the post.

Ormsby’s nomination has drawn criticism from former Spokane Mayor John Talbott and others [including former Center for Justice client and current CFJ Communications Director Tim Connor] because of his leading role in the River Park Square garage transaction. The collapse of the garage transaction in 200 led to a major and successful federal securities fraud action against the City of Spokane and other parties, including Ormsby’s law firm. According to court documents and testimony, Ormsby was the lead counsel for the non-profit organization–the Spokane Downtown Foundation–that sold more than $31 million in tax exempt bonds to finance the garage transaction. Ormsby’s firm also served as bond counsel for the transaction. The IRS eventually determined that the bonds ran afoul of federal rules governing tax exempt securities and directly criticized Ormsby and others involved in putting together and promoting the garage transaction.

If confirmed by the Senate, Ormsby will succeed current U.S. Attorney James McDevitt, a former law partner of Ormsby who has also come under criticism for his own role, alongside Ormsby, in the River Park Square garage transaction.

–CFJ

The New York Times reports today that Sen. Ben Cardin of Maryland and others in Congress are pushing a Clean Water Restoration Act to try to fix a big loophole in the federal Clean Water Act. The gap in the current law is the focus of the Times’s story, the latest in the paper’s superb “Toxic Waters” series.

What the article by Charles Duhigg and Janet Roberts examines is how Supreme Court decisions in 2001 and 2006 have significantly limited the reach of the Environmental Protection Agency’s crack down on known and water pollution sources. As the writers explain, the key question is what Congress intended when it  used the phrase “the discharge of pollutants into the navigable waters” in the 1972 law. In short, the loophole created by the recent rulings has effectively thwarted EPA regulation of sources of pollution to tributaries of rivers, on the basis that the immediate sources of the pollution (i.e. a ditch, or a stream) are not “navigable.”

“The consequences of the Supreme Court decisions are stark,” the Times reports. “In drier states, some polluters say the act no longer applies to them and are therefore refusing to renew or apply for permits, making it impossible to monitor what they are dumping, say officials.

“Cannon Air Force Base near Clovis, N.M., for instance, recently informed E.P.A. officials that it no longer considered itself subject to the act. It dumps wastewater — containing bacteria and human sewage — into a lake on the base.

“More than 200 oil spill cases were delayed as of 2008, according to a memorandum written by an E.P.A. official and collected by Congressional investigators.”

The Times article also looks at how industry interest groups like the American Farm Bureau Federation are relying upon scare tactics, and Glenn Beck-style messaging to try to thwart the new legislation.

–CFJ

In a letter sent this week to the organization’s board and staff, the Center for Justice’s litigation director and chief administrator has announced his resignation.

“Last week marked my sixth anniversary as an employee at the Center for Justice,” Beggs wrote. “As I reflect on my remarkable experiences here, I know in my heart and mind that it is time for a change.”

Beggs, 47, is a Whitworth University graduate, born in Weaverville, California, who came to the Center from private practice in Bellingham. He is widely regarded as having one of the best legal and policy minds in the Northwest. His numerous awards and recognition include a Local Hero Award from the Washington Bar Association in 2003, Outstanding Young Lawyer from the Washington State Bar Association in 1996, and his selection as an Uncommon Contributor to the Community by the Spokesman-Review in 2008. He has initiated and guided a number of high-profile cases and causes during his tenure as the Center’s “Chief Catalyst.”

Breean Beggs

As Beggs acknowledged in his letter, his decision to leave comes in the wake of a difficult year in which the nonprofit law firm has been trying to re-organize its work in light of a declining budget.

“At the same time,” he wrote, “my continued development as a catalyst for positive social change seems to be preparing me for more formal public office in the coming years. I believe that both causes will be best served if I step away now as an employee of the Center.”

Beggs wrote that he remains “absolutely committed to the Center’s missions, its causes and clients,” and that he will continue to serve at the Center as the law firm considers whether and how to replace him as its day to day leader. Beyond that, he wrote, “my next step is to join my longtime lawyer friends at the firm of Paukert & Troppmann, where I will continue to represent those of limited means and influence as a legal advocate.”

Jim Sheehan, the Center’s founder and board president, said he was both surprised and saddened by Beggs’s announcement.

“It really is hard to explain to people on the outside just how important Breean has been in guiding the Center’s litigation and public policy initiatives over the past six years,” Sheehan said. “He really was able to take our work to a whole new level, especially when our community needed a fierce public advocate for open government, government accountability, civil rights and due process. I guess if there’s a silver lining here it’s that Breean clearly has the gifts to be a dynamic public servant, if that’s where he’s headed.”

Sheehan said the Center’s board and staff will be deeply engaged in discussions about whether and how the Center will move to replace Beggs.

“To be honest, these have been trying times for all of us,” Sheehan said. “We’re deeply committed to being the Community’s law firm but, as Breean noted in his letter, we’re continuing to wrestle with how best we can do that with our limited resources.”

Sheehan said that while Beggs’s departure will undoubtedly affect the Center’s future litigation strategies, current cases such as the Federal civil rights suit brought on behalf of the estate of Otto Zehm will not be affected.

–CFJ

The Spokane Riverkeeper and Trout Unlimited are asking the Washington Department of Fish and Wildlife (WDFW) to stop the construction of recreational docks just downstream of Plante’s Ferry Park in the Spokane River. The protest on behalf of the two organizations was filed earlier today by the Gonzaga University Environmental Law Clinic which represents the Riverkeeper in enforcement actions.

Dock at Coyote Rock.

Today’s letter objects to the issuance of a permit authorizing dock construction by Invest Northwest, the owner of the Coyote Rock development. In part, the protest also sharply criticizes the decision by WDFW to grant a permit that could lead to the construction of thirty docks in an area that is known to be important habitat for the river’s struggling population of native red band trout. Instead of analyzing the effects on fish and fish habitat association with the construction of thirty docks, which the developer plans to building, the WDFW permit only examined the impact associated with a single dock.

The letter also points out that the developer has already violated the permit by constructing a dock without complying the permit terms.

The development where the docks would be located is a stunningly beautiful of cold, deep water that flows beneath high basalt bluffs and the landmark Arbor Crest Winery.  The area is also known as important redband trout habitat.

Satellite photo showing Coyote Rock development (grayish area at bottom).

“There are several things going on here that we really don’t like,” says Spokane Riverkeeper Rick Eichstaedt. “First, WDFW’s action avoids a broad environmental impact analysis of what the developer’s plans would entail if, as they’ve advertised, they build 30 some docks in this area of the river. So, in the big picture, given where this is and the need to protect native trout habitat, we don’t think a permit should have been issued without looking at the cumulative impacts of what the developer would like to do. Secondly, the developer violated the permit by jumping the gun on construction and building one of the docks. Then, to add insult to injury, WDFW field inspectors not only found the unauthorized dock, but found evidence of an unauthorized intrusion by a wheeled tractor into the shoreline buffer area which damaged both the terrain and the riparian vegetation.”

The report of the unauthorized construction and shoreline damage was reported earlier this month by a WFDW habitat biologist who’d conducted a site inspection.

Ruts left by tractor in shoreline area.

“It’s pretty clear,” says GU law clinic attorney Mike Chappell, “that the permit was violated and the shoreline damaged in the process. So we think the developer should be sanctioned and the dock removed. But the larger concern is for the long-term effect on the trout in this portion of the river if, as planned, the developer builds all these docks. It’s distressing that WDFW seems to have done nothing to assess the cumulative effects of the plan on the trout and we question whether that’s consistent with state law.”

–CFJ

UPDATE February 16: SB 6289, the state senate bill to control phosphorous in lawn fertilizer, passed the senate on Friday evening on a 36 to 11 vote.

In the latest illustration of how nothing comes easy in the battle to remove algal scum from the Spokane River and other Washington waterways, backers of legislation that would limit phosphorous in lawn fertilizer are coming under sharp attack from the lawn service industry.

In a recent letter to his customers, Chris Senske the President of Spokane’s Senske Lawn and Tree Care company warns of dire consequences if the state legislature passes the “foolish” fertilizer/phosphorous legislation.

“Even while Washington is in desperate financial condition,” Senske wrote, “your legislature is spending time trying to control your life even more and cost you money while ignoring scientific facts.”

Algae blooming on Long Lake (Lake Spokane) last fall.

Senske asks for help killing the legislation “that keep you from having a healthy lawn, trees and yard.” Among other things, he asserts that phosphorous “is critical to keeping the devastating Necrotic Ring Spot disease out of your lawn.”

“Your lawn is approximately 30% P [phosphorous],” Senske adds, “It needs some P periodically because you remove it in clippings. We monitor that need for you. The scientific research shows that P applied as lawn fertilizer actually reduces the amount of runoff and infiltration through soil protecting our water.”

Senske is trying to direct his fire at Spokane state Sen. Chris Marr, one of the sponsors of the Senate Bill.

Proponents of the bill, including Spokane Riverkeeper Rick Eichstaedt, are fighting back, contending that the lawn care industry revolt against the bill is spreading misinformation and playing on peoples’ fears of big government.

“What’s funny,” Eichstaedt says, “is that this bill is actually very reasonable because its purpose is to prevent the application of excess phosphorous that runs off into streams and rivers. Maybe we’re asking too much for the lawn service folks to understand just how damaging and expensive excess phosphorous is to our waterways. But they should know better than to gas up peoples’ fears that their lawns are somehow going to be destroyed because of these bills. That’s ridiculous.”

Among other things, Eichstaedt point to provisions in the bills that would allow additional phosphorous to be applied when lawn test results show that the P levels are too low to support healthy turf growth.

“It’s terrific that Senske reminds his customers that his company monitors phosphorous levels in yards,” Eichstaedt says. “And what the bills provide is that if those monitored levels show additional phosphorous is necessary, then they can add it, but not in excessive amounts that will run off into our streams.”

Eichstaedt is encouraging Spokane River supporters and others working to clean up state waterways to contact Sen. Marr, and/or the state senators and representatives from their districts and encourage them to back the legislation, (House Bill 2744 and Senate Bill 6289)

A fact sheet responding to criticism to the bill has been prepared by Eichstaedt with help from the Washington Lake Protection Association. Among other things, Eichstaedt cites a recent study from Michigan that found a 28% decrease in the phosphorous content of stormwater as a result of a measure similar to that of the proposed Washington legislation. You can download a pdf version of it here P Fact Sheet.

–CFJ

(January 25th update) Since we posted this story on January 22nd, we’ve learned of Kelly Susewind’s testimony before the House Agriculture and Natural Resources Committee the same day. Susewind is the program manager for the Washington Department of Ecology’s Water Quality Program. His frank testimony in opposing HB 2559 made several of the points that Rick & Mike’s letter made. After informing the committee that he was a strong proponent of water pollution trading in general, and that he was anxious to see it put in practice to meet the Spokane River’s dissolved oxygen problems, he had this to say:

“Given my enthusiasm for trading, you’re probably wondering why we’re opposed to the bill. We’re primarily opposed to the bill because we feel it is inconsistent with the Clean Water Act and the state Water Pollution Control Act.

“For water quality trading to work you need to have it be pollutant specific, or at least address pollutants that effect the same water quality end point. It needs to be in a specific water body, and it needs to be addressed in a similar timeframe. It’s intended to fix a specific problem. You can’t trade one pollutant for another. The bill, as we read it, will allow for this sort of out of kind trading. It would allow trading one pollutant for another, trading pollutants for technology requirements that are otherwise required under the Clean Water Act and state law. Or even, in this bill, trading pollutant reductions for administrative requirements under the permits. We don’t think those are sound policy, or legal under current federal law.”

You can watch  Susewind’s testimony, among others, at this link to the TVW video of the hearing. –tjc

For the second time in as many sessions, Spokane Riverkeeper Rick Eichstaedt is helping to lead a fight against Washington state legislation that would weaken the state’s commitment to compliance with the federal Clean Water Act.

This time he has some help, close to home, in Mike Chappell, the attorney who heads up the Gonzaga Law School’s environmental law clinic and who represents the Spokane Riverkeeper in legal actions aimed at protecting Spokane River water quality.

Mike Chappell and Rick Eichstaedt

The nemesis this year is House Bill 2559 introduced earlier this month by three west side legislators, Rep. Deb Eddy (Redmond, Kirkland, etc.), Rep. Dave Upthegrove (Sea-Tac, Des Moines), and Rep. Dan Roach (Bonny Lake). Eddy and Upthegrove are Democrats, and Roach is a Republican.

While the main purpose of the bill is to instruct the state to put in place a “watershed-based” pollution trading and banking system by the end of next year, it contains language whose plain meaning would compel the state to try to override federally mandated water quality standards in order to help polluters come into compliance with state and federal clean water requirements. The bill is primarily oriented to addressing water bodies like the Spokane River which are out of compliance because of nutrient pollution leading to low dissolved oxygen.

“If passed,” Eichstaedt and Chappell warn, “HB 2559 would be preempted by federal law because it directly conflicts with the Clean Water Act (CWA). Because federal law preempts state law, the state may only legally implement standards that will be more stringent than federal standards; not less stringent, and there is no scientific evidence that nutrient trading or banking is more stringent than existing Clean Water Act requirements.”

Eichstaedt and Chappell sent their critique, Thursday, to Rep. Timm Ormsby (D, Spokane) who sits on the committee (Agriculture & Natural Resources) where the bill will first be examined and debated.

On a purely practical level, the two point out that there’s very little evidence to suggest pollution trading schemes, such as the one proposed, are effective. They note, for example, that efforts to use pollution trading and banking in the Chesapeake Bay watershed have failed woefully in meeting targets for nutrient reductions set by the U.S. Environmental Protection Agency (EPA).

But the main problem they underscore is how the bill’s language conflicts with settled federal law, including a landmark 2007 Ninth Circuit opinion (Friends of Pinto Creek v. U.S. EPA) where the court emphatically barred new discharges of polluted water into streams that were already impaired by pollutants. Under a pollution trading plan, point dischargers could initiate or continue pollution discharges into polluted waterways if they could be credited with accomplishing pollution reductions elsewhere in the watershed, directly or by purchase.

“Washington law does not allow for nutrient offsets for existing dischargers,” the two note in their letter to Ormsby, “and federal law prohibits offsets for new dischargers, therefore any trading scheme developed by the state could not be used under any circumstance for a new source or discharge, such as the proposed Spokane County [wastewater treatment] plant.”

Eichstaedt and Chappell reserve their most pointed criticism for language in the bill that literally states that pollution trading be pursued “in lieu of other technology or water quality-based requirements.”

It’s pretty simple, they point out: “The Clean Water Act prohibits the issuance of permits where the resultant discharge will cause or contribute to the violation of water quality standards.”

–CFJ

Using unusually harsh language, President Barack Obama today denounced a much-anticipated U.S. Supreme Court decision published this morning that peels back longstanding restrictions on political speech by corporations and labor unions.

“With it’s ruling today,” Obama said in a prepared statement released by the White House, “the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”

President Obama

The court was sharply divided in its 5-4 decision this morning, with a 90-page dissent from Justice John Paul Stevens accompanying the 57-page majority opinion authored by Justice Anthony Kennedy.

“The censorship we now confront is vast in its reach,” Kennedy wrote in his opinion. Then quoting Justice Antonin Scalia from an earlier dissent, he wrote: “The Government has ‘muffled the voices that best represent the most significant segments of the economy.’”

In his dissent, Justice Stevens accused the court majority of vastly overreaching in a way that would damage the health of American democracy.

“The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation,” he wrote. “The path it has taken to reach its outcome will, I fear, do damage to this institution [the Supreme Court].”

In its coverage on-line this morning, the New York Times characterized the ruling this way:

“The decision’s most immediate effect is to permit corporate and union-sponsored political ads to run right up to the moment of an election, and to allow them to call for the election or defeat of a candidate. In presidential elections and in highly congressional contests, that could mean a dramatic increase in television advertising competing for time and public attention.

“In the long term, corporations, their industry associations and labor unions are free to tap their treasuries to assist candidates, although spending may not be coordinated with the candidates.

“‘It’s going to be the Wild Wild West,’ said Ben Ginsberg, a Republican attorney who has represented several GOP presidential campaigns. “If corporations and unions can give unlimited amounts…it means that the public debate is significantly changed with a lot more voices and it means that the loudest voices are going to be corporations and unions.’”

That was the theme Obama picked up on in his remarks.

“This ruling gives the special interests and their lobbyists even more power in Washington–while undermining the influence of average Americans who make small contributions to supported their preferred candidates,” he said. “That’s why I am instructing my Administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision. The public interest requires nothing less.”

–CFJ