Monday’s decision by the U.S. Army Corps of Engineers to deny a permit to build the nation’s largest coal export terminal at Cherry Point in Whatcom County did not come down to a long list of environmental concerns and whether any could be adequately mitigated.
Nor did the potential economic benefits of development and resulting jobs enter into weighing advantages versus costs.
What decided denial of the project’s permit was a 161-year-old agreement among governments.
The Gateway Pacific Terminal, proposed by SSA Marine and Cloud Peak Energy, was a $700 million project to build an export facility that would have brought coal from mines in Montana and Wyoming via rail through Washington state and in particular Snohomish and Whatcom counties, then by freighter to China and elsewhere.
Gateway Pacific, supporters said, would have brought family-wage jobs to the region and generated needed tax revenue for state and local governments.
But opponents, including local governments, environmental groups and the region’s tribes, raised concerns about increased freighter traffic in the waters off Cherry Point and through the San Juan Islands, a significant increase in coal train trips through cities and added congestion at at-grade crossings, loss of marine habitat at the terminal site and pollution from coal dust along the route, not to mention the addition of carbon to the global atmosphere once the coal arrived at its destination.
An additional concern, raised by the Lummi Nation, whose Lummi Island reservation sits just south of Cherry Point, was that the export facility would cover more than 140 acres of water, including waters that the tribe considers part of its usual and accustomed fishing grounds that had been secured when they and other regional Indian tribes signed the Point Elliott Treaty of 1855.
In denying the permit for Gateway Pacific, the Army Corps determined the project would have had an impact on the tribe’s treaty-protected fishing rights. That impact was all that was needed to deny the permit.
“The Corps may not permit a project that abrogates treaty rights,” said Col. John Buck, commander of the Corps’ Seattle District.
Gateway developers, specifically Bob Watters of SSA Marine subsidiary Pacific International Terminals, called the decision “inconceivable” and “a political decision and not fact based.”
Buck, in a report by the Bellingham Herald, said that while all information submitted on the project — from supporters and detractors — was reviewed, issues such as increased vessel traffic and the potential for spills weren’t a factor in the denial of the permit.
In that respect, the denial was a political decision, but one based on honoring a long-held treaty between the United States government and the sovereign nation of the Lummi Indians, as well as the tribes of the Tulalip, Suquamish, Port Madison and Swinomish reservations who also are signatories to the treaty.
Gateway supporters had questioned how often Lummi fishermen had used the waters that the development would have affected, but frequency of fishing wasn’t the issue. The waters in question are part of the tribe’s usual and accustomed grounds, as protected by treaty. The Corps determined that any impact, combined with the tribe’s objection, meant the permit could not be approved.
Gateway’s developers could conceivably reach an agreement with the Lummi Nation that would address the tribe’s concerns and allow the project to proceed, but the tribe has already rejected earlier financial offers in the interests of protecting its treaty rights.
Regardless of the various economic and environmental issues involved, the Army Corps of Engineers, not typically in the habit of blocking development, had an obligation to uphold a treaty its government signed more than 150 years ago.
The tribes that signed the Point Elliott Treaty made significant concessions in agreeing to the pact; why they would want to protect the rights outlined by the treaty should be clear.
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