From our colleague, Daniel Lee:

In PT Air Watchers v. Wash. Dep’t of Ecology, the Washington Supreme Court unanimously upheld Ecology’s decision not to require an Environmental Impact Statement (EIS) under the State Environmental Policy Act (SEPA) for an energy cogeneration project. The project, proposed by the Port Townsend Paper Corporation, would increase woody biomass usage at a kraft pulp and paper mill, and decrease burning of fossil fuels. It would also increase energy output so that the mill could sell excess energy to the power distribution system.

Following Ecology’s decision, environmental organizations intervened, arguing that Ecology should have prepared an EIS because of the impacts of greenhouse gas emissions and use of forest resources, and because a categorical EIS requirement applied. The court rejected each of these arguments.

  1. Greenhouse Gas Emissions. The court determined that Ecology adequately analyzed the project’s carbon dioxide emissions and properly considered legislative policy in determining the emissions would not have a significant impact on the environment. Specifically, Ecology considered RCW 70.235.020(3), which provides that subject to certain conditions, carbon dioxide emissions from biomass combustion should not be considered a greenhouse gas. Based on this statute, Ecology concluded that the project decreased GHG emissions from the mill. The court agreed, reasoning that the legislative preference for biomass is a legitimate consideration. Moreover, the court concluded that Ecology did not need to estimate the exact emissions of the project before determining that an EIS was not required.
  2. Forest Resources. The court determined that Ecology adequately considered impacts on forest resources and correctly concluded the project would not adversely impact these resources. Another statute, the Washington Forest Practices Act, regulated removal of biomass from forests, which allowed Ecology to conclude that the effects from such removal would not be significant. Additionally, Ecology was not required to consider the possibility of the project leading to tree cutting for harvesting new wood because the project did not include any such plans and Ecology’s order did not permit such harvesting.
  3. Statutory EIS Requirement. The court concluded that a categorical EIS requirement did not apply because the project met an exception to the requirement. Specifically, RCW 70.95.700(3) requires EISs for solid waste incineration facilities or energy recovery facilities that had not begun operating prior to January 1, 1989. The court determined that the mill burned solid waste (sewage sludge) beginning before 1989, and that energy recovery could be interpreted to include the mill’s operations, regardless of whether the energy was previously sold to outside parties. Accordingly, the court upheld Ecology’s decision not to require an EIS.

In sum, PT Air Watchers v. Ecology is yet another example of the substantial administrative deference agencies receive from the courts. Beyond the fact-specific conclusions the court reached, the case supports several broad principles with potential applicability in the context of SEPA and the EIS requirement:

  •  Qualitative consideration of environmental impacts will usually suffice in determining whether an EIS is required; an agency need not quantify the exact impacts to reach its conclusion.
  •  Ecology can rely on the assumed mitigating effect of other regulation in determining not to provide in-depth analysis of impacts.
  •  Ecology need not consider speculative impacts that would only occur upon an action’s deviation from current plans or from the provisions of a permit or administrative order.
  •  Finally, in at least some instances, Ecology may be permitted to consider statutory purposes in evaluating impacts and determining whether an EIS is required.