This week the Legislative Steering Committee (LSC) considered HB 1549/SB 5561, proposed legislation directing the Department of Ecology to adopt a rule governing the evaluation of greenhouse gas emissions as part of SEPA.  The legislation was put forward by the Washington Public Ports Association to better define an issue that is increasingly a subject of costly litigation resulting from project review appeals.

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The bill directs Ecology rulemaking with several requirements including guidance on what constitutes significant, probable impacts from direct and indirect project-related emissions, guidance for making SEPA threshold determinations, contextual requirements for classifying and considering emissions, determining when global life-cycle analysis should be considered, identifying ways to evaluate market substitution and displacement factors, and more.

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The committee discussed the merits (and lack thereof) of the rulemaking process as well as other strategies. It also discussed the content of the proposal and whether it was even needed. Ultimately it was decided that ongoing risk for continued litigation and the potential for the courts to be the deciding factor in shaping these evaluations moving forward was not in counties’ collective interests.

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The bill will be heard in committee this week and the LSC decided to support the framework of the bill but advocate for a consensus-based stakeholder process. Such a process would include substantial representation from local governments to develop a recommendation for consideration by the legislature. If the collaborative process fails, the back-stop could be for Ecology rulemaking. It is understood and accepted that such a strategy would take substantial time and effort while maintaining the current risk levels until complete.

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It is unclear how, when or if this bill or something similar will move forward in the 2019 session. Rumors are that the bill will have a strong showing of support from business and development interests, who are, in effect, asking to be regulated.  Rumors also place environmental organizations as opposed.  We have been notified that Ecology and the Governor’s office will be testifying in opposition.

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This is a very significant issue that won’t be resolved anytime soon. The bill is complex and difficult to read, just like the analysis, it proposes to regulate. It’s likely the hearings taking place this week are only the start of a long and interesting conversation.