PT Air Watchers v. Dep't of Ecology ( 2014 )

Fl L E
IN CLERKS OFFICE
. DATE FEB 2 7 201G4 2
IUPREME COURT, STATE OF WASIIIG'ftlN
~rJ- I
CHIEFJUB
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
PT AIR WATCHERS; NO
BIOMASS BURN; WORLD
TEMPERATE RAINFOREST No. 88208-8
NETWORK; OLYMPIC En Bane
ENVIRONMENTAL COUNCIL;
and OLYMPIC FOREST Filed FEB 2 7 2014
COALITION,
Appellants,
v.
STATE OF WASHINGTON,
DEPARTMENT OF ECOLOGY;
and PORT TOWNSEND PAPER
CORPORATION,
Respondents.
J.M. JOHNSON, J.- In this case, we are asked to consider whether the
Department of Ecology (Ecology), in determining that no environmental
impact statement (EIS) was necessary for a proposed energy cogeneration
PT Air Watchers, et al. v. State of Wash., Dep 't of Ecology, et al., No. 88208-8
project, failed to adequately consider the effects of carbon dioxide emissions
and demand for woody biomass from the state's forests. We are also asked
to consider whether the project is exempt from the EIS requirement as part of
an energy recovery facility that existed before January 1, 1989. Ecology
adequately reviewed the relevant information in determining that the project
would not have significant impacts on the environment, and the project is
exempt from the EIS requirement as part of an energy recovery facility that
existed before January 1, 1989. We affirm the Pollution Control Hearings
Board (Board).
FACTS AND PROCEDURAL HISTORY
Respondent Port Townsend Paper Corporation (PTPC) owns and
operates a kraft pulp and paper mill in Port Townsend, WA. The mill burns
fossil fuel and woody biomass 1 to produce steam for use in its pulp and paper-
making processes. In May 2010, PTPC applied to Ecology for a notice of
construction (NOC) permit allowing it to construct a new cogeneration project
1
"Biomass" includes "residual branches, needles, and tree tops (slash) left over from
ongoing logging operations; products of pre-commercial thinning (small saplings from
overcrowded young forests); tree stems and tops thinned from forests that are at risk from
wildfires, insects or diseases (forest health treatments) that are not currently utilized; clean,
untreated wood construction and demolition waste (that would otherwise have gone to the
landfill); and unused materials from lumber mills, such as sawdust, shavings, chips or
baric" Administrative Record at 414.
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at the existing mill. The project at issue will minimize the burning of fossil
fuel, increase the burning of woody biomass, and add an electrical turbine to
one of its steam boilers. The project will increase the firing efficiency in the
mill's power boiler 10 (PB 10) in order to burn primarily woody biomass to
produce the increased steam for a new steam turbine. The project will add up
to 25 megawatts of electrical generating capacity to the mill, which will sell
some of this electricity to the power distribution system. Increased firing in
PB 10 will result in increased emissions of some pollutants, including carbon
dioxide. Administrative Record (AR) at 260.
Ecology reviewed PTPC's NOC application under the State
Environmental Policy Act (SEPA), chapter 43.21C RCW. On September 24,
2010, Ecology issued a determination ofnonsignificance (DNS) and opened
a public comment period until October 8, 2010. AR at 496. On October 22,
2010, Ecology issued NOC Order No. 7850, approving construction of the
project. AR at 497.
PT Air Watchers and a number of other environmental groups
(collectively PT Air Watchers) timely appealed the NOC and underlying
SEP A DNS to the Board. The appeal focused on whether Ecology erred in
failing to consider the environmental impacts from the increased carbon
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dioxide emissions resulting from burning woody biomass in order to generate
energy. The appeal also concerned the environmental impacts on Northwest
forests that may result from the increased demand for woody biomass needed
to generate the energy. Finally, PT Air Watchers challenged Ecology's failure
to require preparation of an EIS.
All parties filed motions for summary judgment. On May 10, 2011, the
Board issued an order granting summary judgment to PTPC and Ecology on
the primary issues in the underlying appeal. AR at 1516-41. PT Air Watchers
then filed a timely petition for review under the Administrative Procedure Act
(APA), chapter 34.05 RCW, to the Thurston County Superior Court on three
SEPA-related issues. On April 10, 2012, the superior court denied PT Air
Watchers' petition for review, upholding the Board's order granting summary
judgment. PT Air Watchers then appealed to Division Two of the Court of
Appeals, which certified the matter to this court pursuant to RCW 2.06.030.
Certification was accepted on December 31, 2012.
ISSUES
1. Did Ecology and the Board correctly consider the legislative
policy behind RCW 70.235.020(3) in concluding that greenhouse gas
emissions from the project would not have significant environmental impacts?
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2. Did Ecology and the Board correctly conclude that the project
would not result in adverse impacts to forest resources?
3. Did Ecology and the Board correctly conclude that an EIS is not
required under RCW 70.95.700?
STANDARD OF REVIEW
1. APA Standard ofReview
The APA governs judicial review of the Board's decision. Port of
Seattle v. Pollution Control Hr'gs Bd., 151 Wash. 2d 568, 587, 90 P.3d 659
(2004). Under the APA, "The burden of demonstrating the invalidity of
agency action is on the party asserting invalidity." RCW 34.05.570(l)(a).
"We accord deference to an agency interpretation of the law where the agency
has specialized expertise in dealing with such issues, but we are not bound by
an agency's interpretation of a statute." City ofRedmond v. Cent. Puget Sound
Growth Mgmt. Hr'gs Bd., 136 Wash. 2d 38, 46, 959 P.2d 1091 (1998); see also
Port of Seattle, 151 Wash. 2d at 587 ("[I]f an ambiguous statute falls within the
agency's expertise, the agency's interpretation of the statute is 'accorded great
weight, provided it does not conflict with the statute."' (quoting Pub. Uti!.
Dist. No. 1 of Pend Oreille County v. Dep 't ofEcology, 146 Wash. 2d 778, 790,
51 P.3d 744 (2002))). The Board's order should be upheld unless we find that
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the Board erroneously interpreted or applied the law, or the Board's order is
not supported by substantial evidence. RCW 34.05.570(3)(d), (e).
2. SEPA Standard ofReview
SEP A establishes a process for evaluating the reasonably foreseeable
environmental consequences of proposed projects. Here, we are considering
Ecology's threshold determination that the project will not have significant
impacts and that an EIS is not required. This determination is based on an
environmental checklist (checklist) prepared by the project applicant. WAC
197-11-315, -330 ("An EIS is required for proposals for legislation and other
major actions significantly affecting the quality of the environment."). Ifthe
checklist reveals that a project will not have significant impacts, Ecology
issues a DNS and the environmental review is over, allowing the project to
proceed. WAC 197-11-340.
Ecology's threshold SEPA determinations are entitled to substantial
weight. RCW 43.21C.090; Norway Hill Pres. & Prot. Ass 'n v. King County
Council, 87 Wash. 2d 267, 275, 552 P.2d 674 (1976) (recognizing that the
"clearly erroneous" standard of review is appropriate in this context). We
must affirm unless we are "'left with the definite and firm conviction that a
mistake has been committed."' Ancheta v. Daly, 77 Wash. 2d 255, 259-60, 461
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P.2d 531 (1969) (quoting United States v. US. Gypsum Co., 333 U.S. 364,
395, 68 S. Ct. 525, 92 L. Ed. 746 (1948)).
ANALYSIS
1. Ecology and the Board Correctly Considered the Legislative Policy
behind RCW 70.235.020(3) to Conclude that Greenhouse Gas
Emissions from the Project Would Not Have Significant Environmental
Impacts
As the first step in a SEP A analysis, the SEP A lead agency must make
a threshold determination concerning whether an EIS is required. WAC 197-
11-310(1), -797. If the agency determines that the probable effect of the
action is significant, the agency issues a determination of significance (DS)
and requires an EIS. WAC 197-11-360(1); RCW 43.21C.030(c) (SEPA
requirement of preparation of an EIS for all "major actions significantly
affecting the quality of the environment."). If the agency determines that the
probable effect of the action is not significant, the agency issues a DNS and
an EIS is not required. WAC 197 -11-340( 1). "The SEP A policies of full
disclosure and consideration of environmental values require actual
consideration of environmental factors before a determination of no
environmental significance can be made." Norway Hill, 87 Wash. 2d at 275.
Furthermore, a DNS must be "based upon information reasonably sufficient
to evaluate the environmental impact of a proposal." Moss v. City of
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Bellingham, 109 Wash. App. 6, 14,31 P.3d 703 (2001).
PT Air Watchers claims that the DNS was improper because the release
of greenhouse gases, including carbon dioxide, can have a significant impact
on the human and built environment. Ecology concedes that increasing the
amounts of carbon dioxide in the atmosphere would have an adverse effect on
the environment. Resp't Dep't of Ecology's Resp. Br. at 10. Ecology,
however, argues that PT Air Watchers' concern is misplaced because the
project will actually decrease the amount of carbon dioxide in the atmosphere.
The purported decrease in carbon dioxide results from the decreased
amount of fossil fuel PTPC will burn as a result of the project. PTPC will
bum 1.8 million fewer gallons of fossil fuel per year. AR at 397. The
respondents acknowledge that the burning of biomass, like the burning of
fossil fuel, emits carbon dioxide into the atmosphere. However, they contend
that the burning of biomass does not add to the total amount of carbon dioxide
in the atmosphere. Biomass is part of the earth's carbon cycle, where plants
take in carbon dioxide from the atmosphere and then release it when they
decay or die. AR at 408. Biomass naturally releases this carbon dioxide if
left on the forest floor to decompose. Forest fires and slash burning also
release the carbon dioxide stored in biomass. In contrast, fossil fuels are not
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part of the earth's carbon cycle. AR at 272. Fossil fuels release carbon
dioxide into the earth's atmosphere only when they are burned. Id. When
fossil fuel is replaced by biomass fuel, the new carbon dioxide that would
normally be emitted from fossil fuel is replaced by carbon dioxide that will be
emitted into the atmosphere regardless of whether the biomass is burned. I d.
The respondents contend that, in this way, the replacement of fossil fuel with
biomass fuel decreases the total amount of carbon dioxide in the atmosphere.
Id.
a. Ecology's Consideration ofRCW 70.235.020(3)
In support of this argument, Ecology and PTPC point to RCW
70.235.020(3), which provides, "Except for purposes of reporting, emissions
of carbon dioxide from industrial combustion of biomass in the form of fuel
wood, wood waste, wood by-products, and wood residuals shall not be
considered a greenhouse gas as long as the region's silvicultural sequestration
capacity is maintained or increased." 2 In implementing this legislation, it was
the intent of the legislature that the state would "(a) [l]imit and reduce
emissions of greenhouse gas . . . ; (b) minimize the potential to export
2
"Silvicultural sequestration capacity" is the capacity of forest structures to store carbon
dioxide. The record suggests that the Northwest's silvicultural sequestration capacity is
currently being maintained or increasing.
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pollution, jobs, and economic opportunities; and (c) reduce emissions at the
lowest cost to Washington's economy, consumers, and businesses." RCW
70.235.005(3). Among other things, the statute lists concrete greenhouse gas
emissions reduction goals and timelines. RCW 70.235.020(1).
Here, the checklist specifically invoked RCW 70.235.020, which
demonstrates the legislature's preference for the burning of woody biomass
over the burning of other fuels. The checklist also indicated that, as a result
ofthe project, PTPC would decrease the amount of fossil fuels burned by 1.8
million gallons per year. AR at 397. Given this information, it was
appropriate for Ecology to assume that the project will decrease the total
amount of carbon dioxide in the environment from PB 10. SEP A does not
require a statement of the exact amount of carbon dioxide that would be
released as a result of the project. Furthermore, courts afford deference to the
agency's interpretation of law where the agency has specialized expertise in
the field. City of Redmond, 136 Wash. 2d at 46.
We note the legislative preference in RCW 70.235.020(3) is a
legitimate reference point for a lead agency's consideration, see WAC 197-
11-315(6), but cannot be read as determinative of any particular project's
impact on the environment. First, whether an emission is classified as a
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greenhouse gas depends on its impact on the climate, 42 U.S.C.
§ 7545(o)(l)(G), but "[c]limate" is only one of many elements of the
environment to be considered, WAC 197 -11-444(1 )(b )(iii). Second, a lead
agency has the authority under SEPA to reach independent, project-specific
determinations, and that authority is not limited by RCW 70.235.020(3)-
chapter 70.235 RCW specifically provides it does not limit any agency's
preexisting authority unless it specifically purports to do so. RCW
70.235.020(l)(c), .900.
Had Ecology and the Board entirely ignored the impact of greenhouse
gas emissions from woody biomass incineration, as PT Air Watchers asserts,
we might reach a different result. However, the record demonstrates that this
is not the case presented. The opportunity to present conflicting, project-
specific, scientific information was amply provided. Ecology accepted public
comments, AR at 33, which is a step not even required by statute. RicHARD
L. SETTLE, THE WASHINGTON STATE ENVIRONMENTAL POLICY ACT: A LEGAL
AND POLICY ANALYSIS §13.01[4], at 13-37 (2013) ("While neither written
findings and conclusions nor public hearings are required, unless perhaps
imposed by agency SEP A procedures, they frequently are volunteered and
tend to enhance public and judicial respect for the threshold determination."
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(footnotes omitted)). The Board considered a wealth of information in
rendering its summary judgment decision. Clerk's Papers at 17-18 (listing, in
the Board's summary judgment order, the extensive briefing and attachments
considered). PT Air Watchers did not present sufficient conflicting
information to create a genuine issue of material fact precluding summary
judgment.
In this case, Ecology properly considered RCW 70.235.020(3) in
performing its threshold SEPA analysis. We recognize Ecology's specialized
expertise in this field and defer to this reasonable interpretation of the statute
that is consistent with its plain language. We hold that Ecology and the Board
properly considered the legislative policy behind RCW 70.235.020(3) in
concluding that greenhouse gas emissions from the project would not have
significant environmental impacts.
b. Sufficiency of Checklist and DNS
PT Air Watchers asserts that the checklist and DNS did not contain
sufficient information for Ecology to evaluate the impacts from carbon
dioxide emissions that will result from the project.
The checklist, however, properly addressed these Issues, including
emissions of greenhouse gases from the increased transportation of biomass.
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PTPC provided an estimate for the additional truck routes needed to transport
the biomass as well as an estimate of the required fuel. AR at 405, 557. The
fact that PTPC did not provide specific carbon dioxide emissions estimates is
irrelevant. The information provided was sufficient to evaluate the general
change in greenhouse gas emissions. In sum, it was reasonable for Ecology
to conclude that the additional fuel needed to transport the biomass would not
have a significant impact on the environment.
SEP A does not require the reporting of specific emissions. Instead, the
agencies must assess environmental impacts. RCW 43.21C.030(2)(c)(i);
WAC 197-11-060, -330(1). Here, the assessment of environmental impacts
was effectively carried out without listing specific estimates of emitted
pollutants. Therefore, PTPC was not required to report estimates in its SEPA
checklist. See Residents Opposed to Kittitas Turbines v. State Energy Facility
Site Evaluation Council, 165 Wash. 2d 275, 312, 197 P.3d 1153 (2008) (holding
that the final environmental impact statement in question "served its function
of presenting 'decisionmakers with a reasonably thorough discussion' of the
visual impacts of the project," even though it did not list a specific option as
a potential mitigation measure (internal quotation marks omitted) (quoting
Klickitat County Citizens Against Imported Waste v. Klickitat County, 122
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PT Air Watchers, et al. v. State of Wash., Dep 't of Ecology, et al., No. 88208-8
Wn.2d 619, 633, 860 P.2d 390, 866 P.2d 1256 (1993))).
The record indicates that Ecology engaged in a reasoned assessment of
the environmental impacts of the proposed project. Ecology's interpretation
and consideration of RCW 70.235.020(3) was reasonable, and the checklist
and DNS contained sufficient information to weigh the environmental impacts
of the project. Accordingly, we hold that Ecology correctly concluded that
greenhouse gas emissions from the project would not have significant
environmental impacts.
2. Ecology and the Board Correctly Concluded That the Project Would
Not Result in Adverse Impacts to Forest Resources
PT Air Watchers claims that the SEP A checklist and the DNS were
inadequate for failing to consider the impacts of removing biomass from
Northwest forests. They contend that Ecology's analysis failed to explain the
effects of increased competition for forest wood waste and how that could
affect forest health.
In issuing the DNS, Ecology relied on the fact that the project would
have to comply with other state and federal laws and regulations that ensure
that the removal of biomass from forest lands does not adversely affect forest
lands or endangered species. Washington's Forest Practices Act, ch. 76.09
RCW, includes the removal of biomass from forests as a regulated forest
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PT Air Watchers, et al. v. State of Wash., Dep 't of Ecology, et al., No. 88208-8
practice. WAC 222-16-010 ("'Forest practice' means any activity conducted
on or directly pertaining to forest land and relating to growing, harvesting, or
processing timber, or removing forest biomass."). Washington also has a
variety of regulations concerning the removal of biomass, including a
permitting process. Permits are issued only if the applicant can demonstrate
compliance with the forest practice rules designed to protect the ecosystem.
Finally, PT Air Watchers' argument that the project may lead to cutting
trees solely for the purpose of providing fuel for the project fails to take into
account that PTPC does not plan to harvest new wood. See AR at 365. An
agency does not have to consider every conceivable environmental impact
when making its threshold SEP A determination, and certainly not a potential
impact that is not permitted by the NOC order.
Because PTPC does not plan to cut down new sources of wood for the
project, Ecology did not need to consider the impact of such actions on
Northwest forests. Ecology ultimately determined that the project would not
have a significant impact on the environment, which should be accorded
substantial weight. See RCW 43.21C.090. We hold that Ecology correctly
concluded that the project would not result in adverse impacts to forest
resources.
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3. Ecology and the Board Correctly Concluded That an EIS Is Not
Required under RCW 70.95.700
In addition to their arguments regarding RCW 70.235.020(3), the
sufficiency of the checklist and DNS, and the project's effect on forest
resources, PT Air Watchers contends that an EIS is required pursuant to a
separate statutory provision. RCW 70.95.700 provides, "No solid waste
incineration or energy recovery facility shall be operated prior to the
completion of an environmental impact statement .... This section does not
apply to a facility operated prior to January 1, 1989, as a solid waste
incineration facility or energy recovery facility burning solid waste." "Energy
recovery" 1s defined as "a process operating under federal and state
environmental laws and regulations for converting solid waste into usable
energy and for reducing the volume of solid waste." RCW 70.95.030(7).
"Solid waste" is defined as "all putrescible and nonputrescible solid and
semisolid wastes including, but not limited to, garbage, rubbish, ashes,
industrial wastes, swill, sewage sludge, demolition and construction wastes,
abandoned vehicles or parts thereof, and recyclable materials." RCW
70.95.030(22).
Although Ecology does not classify wood fuels as solid waste, PB 10
has been burning some solid wastes, including primary sludge, from the
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process wastewater treatment plant for approximately 30 years. AR at 223,
240. Because PB 10 is an energy recovery facility that burns at least one fuel
classified as solid waste (sewage sludge), it is subject to RCW 70.95.700. An
EIS is required unless PB 10 falls under the exception to the statute for
facilities operated prior to January 1, 1989.
Ecology asserts that because PTPC constructed and operated its two
steam generating units before January 1, 1989, the exception in RCW
70.95.700 applies. PT Air Watchers, however, argues that PB10 was not used
as an energy recovery facility prior to January 1, 1989, because the facility
has not previously been used for generating electricity that may be sold to
outside parties. Therefore, they contend that the exception does not apply.
PT Air Watchers' argument is unpersuasive.
PB 10 was installed in 197 6 and has been burning wastewater residuals
and biomass since that time. AR at 782, 792. PB 10 will continue to burn
wastewater residuals and biomass after the project is complete. These fuels
are combusted to produce steam to support the mill operations and produce
power. AR at 782. Here, PT Air Watchers cannot meet its burden of proving
that solid waste was not burned in PB 10 for the purposes of energy recovery
prior to 1989. Instead, they argue that modifications to an existing energy
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recovery facility trigger the requirements of RCW 70.95.700. This is not a
persuasive reading of the statute. Energy recovery relates to converting solid
waste into usable energy, not just producing electricity that may be sold to
outside parties. This project does not involve the construction of a new solid
waste or energy facility. It simply modifies the combustion units that have
been in operation since before January 1, 1989.
Furthermore, PT Air Watchers' reading of the statute would render the
exemption meaningless. SEP A review for an existing energy recovery facility
is triggered only by some action modifying the facility. Under PT Air
Watchers' reading of the statute, any action modifying an existing facility
would be ineligible for the exemption and would require an EIS. Therefore,
the exemption for existing facilities could never apply. "A fundamental canon
of construction holds a statute should not be interpreted so as to render one
part inoperative." Davis v. Dep 't ofLicensing, 137 Wash. 2d 957, 969, 977 P.2d
554 (1999). PB10 is an energy recovery facility that burns solid waste and
has been operating since before 1989, so the exemption in RCW 70.95.700
applies. Accordingly, we hold that the Board correctly concluded that an EIS
is not required under RCW 70.95.700.
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CONCLUSION
Based on a reasonable interpretation of RCW 70.235.020(3) and
sufficient information contained in the checklist, Ecology engaged in a
reasoned assessment of the environmental impacts of the proposed project.
We hold that Ecology and the Board correctly concluded that greenhouse gas
emissions from the project would not have significant environmental impacts.
We further hold that Ecology and the Board correctly concluded that the
project would not result in adverse impacts to forest resources. Finally,
because PB 10 is an energy recovery facility that has been burning solid waste
since before January 1, 1989, we hold that Ecology and the Board correctly
concluded that an EIS is not required under RCW 70.95.700. We accordingly
affirm the Board's decision.
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WE CONCUR:
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