US Army Corps Undermines Magnuson’s Legacy of Protecting the Salish Sea from Oil Spills
After ignoring court order for 17 years, Corps authorizes unmitigated growth of BP’s tanker traffic
||| FROM LOVEL PRATT for FRIENDS OF THE SAN JUANS |||
SEATTLE: The United States Army Corps of Engineers (Corps) released a Record of Decision last week that at first blush seems like a win for reducing oil spill risks in the Salish Sea. The Decision requires BP to limit the volume of crude oil handled at its Cherry Point terminal to 191 million barrels per year and prohibit handling crude oil at its North Wing dock unless authorized. However, the Record of Decision significantly overestimates the crude oil handling capacity of the terminal prior to the construction of the new wing.
“The Corps’ ‘limit’ on the volume of crude oil that BP can receive at its terminal is nonsensical and unconscionable,” said Lovel Pratt, Marine Protection and Policy Director at Friends of the San Juans. “This ‘limit’ is a license to more than double the volume of crude oil that’s currently processed at BP.”
The Corps’ Record of Decision undermines the legacy of Washington State’s late US Senator, Warren Magnuson, who instituted significant protections against oil spills in the Salish Sea. Senator Magnuson’s 1977 amendment to the Marine Mammal Protection Act (33 U.S.C. § 476), sometimes referred to as the Magnuson Amendment, prohibits federal agencies from granting permits “which will or may result in any increase in the volume of crude oil capable of being handled at any such facility (measured as of October 18, 1977), other than oil to be refined for consumption in the State of Washington.”
There are also positives in the Record of Decision; the concluding sentence in Appendix A (page 25) states: “Given these findings, the Corps has determined that the permit authorizing construction and operation of the Cherry Point Marine Terminal’s North Wing dock increased the terminal’s crude oil handling capacity to a level exceeding the October 18, 1977, baseline handling capacity, in violation of the Magnuson Amendment.”
This finding is the first time, since the Magnuson Amendment was passed in 1977, that the Corps has ever made such a determination for a refinery tanker terminal permit. “The Corps finally agrees with our long-held assertion that BP has been able to handle more crude oil at its marine terminal since the new wing was built in 2001. Therefore, the Corps determined its permit must be modified to comply with the Magnuson Amendment,” said Marcie Keever, Oceans & Vessels Program Director at Friends of the Earth.
Unfortunately, with 191 million barrels per year being set as the limit, almost double their current capacity, the Record of Decision could result in increased vessel traffic impacts and increased risks of catastrophic oil spills. “The law is clear: federal permits cannot allow more crude oil in Puget Sound. This decision makes a mockery of that standard” said Jan Hasselman, senior attorney at Earthjustice on behalf of the plaintiff organizations.
So how did we get here? Let’s step back through 22 years of litigation (see pp 1-4 of the Record of Decision for a complete legal history that led to this decision).
In 2000, the Corps issued BP a permit to add a second wing to its oil tanker terminal at Cherry Point – effectively doubling the number of tankers able to berth at the refinery – the largest in Washington State. Not only did the Corps fail to consider whether the permit had to be conditioned to comply with the Magnuson Amendment, it didn’t even require BP to complete a full Environmental Impact Statement, as required by the National Environmental Policy Act for major projects. This, despite the potential for the significant increases in oil tanker traffic and risks of catastrophic oil spills in the Salish Sea.
In 2005, following a lawsuit filed by an environmental coalition challenging the legality of the Corps permit, the Ninth Circuit Court of Appeals ruled that the Corps’ action was illegal and ordered the Corps to prepare a full Environmental Impact Statement, and also determine if the permit complied with the Magnuson Amendment. The Corps published its intent to prepare a draft Environmental Impact Statement in August 2006, but didn’t issue the draft Environmental Impact Statement until 2014, a delay of nine years after the Court’s order.
As of 2021, the Corps had still not published the Final Environmental Impact Statement (17 years after the Court’s orders and 22 years after the terminal began operations). Recognizing the increasing urgency of preventing a catastrophic oil tanker spill and in light of the continued decline of many marine species, especially the endangered Southern Resident Killer Whales, the Friends of the San Juans, Evergreen Islands and Friends of the Earth sued the Corps in September 2021 for its unreasonable delay in issuing the final Environmental Impact Statement or consider its permit’s compliance with the Magnuson Amendment. The parties reached a settlement in 2022 with the Corps committing to a firm deadline to finalize the Environmental Impact Statement and complete its Magnuson determination.
Pursuant to the settlement, the Corps released the final Environmental Impact Statement in August 2022 and on January 23, 2023 issued their Record of Decision, including what, if any, conditions would be needed to ensure that the permit complies with the Magnuson Amendment. The Record of Decision has raised more questions than it’s answered. “It’s a sad day when it takes the US Army Corps of Engineers 17 years after being sued to exercise its basic public responsibilities and then to use its authority to eviscerate the late Senator Magnuson’s legislative legacy,” said Marcie Keever, Oceans & Vessels Program Director at Friends of the Earth.
“Vessel traffic poses three ominous threats to the orcas’ existence: vessel noise, vessel/orca collisions, and oil spills,” said Tom Glade, Evergreen Islands. “We, the human residents of Puget Sound, currently have an opportunity to take steps towards preventing the Southern Resident Killer Whales from annihilation – or to our dishonor, letting this opportunity, to improve the orcas’ habitat by reducing the vessel traffic through the Salish Sea, slip through our fingers.”
BACKGROUND INFORMATION
Corps Overestimation of Crude Oil Handling Capacity
The Corps’ estimate of the volume of crude oil that could be handled at the original South Wing (that provided a single-berth capacity) in 1977 was 191 million barrels per year when in fact the refinery could only process 36.5 million barrels per year. The Corps estimate is so inflated that it even exceeds the refinery’s current capacity (91.25 million barrels per year) by 100 million barrels per year.
The Corps determined that it would not be practical to transfer crude oil from the North Wing dock with the current piping that connects the North Wing to the refinery’s crude oil storage tanks. However, the Corps’ estimate of the volume of crude oil that can be handled at the South Wing did not consider the capacity of the refinery’s crude oil storage tanks (as of 1977) a relevant constraint.
The Corps further asserts that 229 tankers could have called on the terminal’s South Wing in 1977. Whereas, BP had already declared the terminal was functionally at capacity in 1998, when there were only 114 tanker calls. This is why the refinery sought the permit to build the North Wing and double its berthing capacity. The highest number of tankers to call at both the South and North wings was 191 in 2007, still 38 less than the Corps claim could have called at just the South Wing.
Consequences Of Building A Second Wing And Doubling The Berthing Capacity At The Bp Tanker Terminal
- The number of crude oil tankers increased 40% (from 114 in 1998 to 191 in 2007).
- Refinery capacity to handle crude oil increased 60% from 100,000 barrels per day in 1971 to 250,000 barrels per day in 2022.
- The second wing that has doubled the refinery’s berthing capacity could enable BP to use the Trans Mountain pipeline spur to receive more Canadian Tar Sands crude oil and export it directly from the terminal. This opportunity will increase once the Trans Mountain pipeline expansion is completed.
History:
1967 Torrey Canyon oil spill (30 million gallons)
1968 Oil was discovered in North Slope of Alaska (ANS)
1971 ARCO built the Cherry Point Refinery to process 36.5 million barrels per year of ANS and Canadian Tar Sand crude oil received via the Trans Mountain pipeline.
1976 ANS crude deliveries start
1977 Magnuson Amendment
1996 ARCO applied for permit to build second wing
2000 Corps grants ARCO a permit to build the North Wing without an Environmental Impact Statement
2000 BP purchases Cherry Point refinery from ARCO
2001 North Wing becomes operational
2001 Lawsuits begin as described in RECORD OF DECISION
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It’s important to note that USACE’s Magnuson Amendment analysis considered the crude oil handling capacity of the dock and not the refinery because of the Ninth Circuit Court’s interpretation of the law in its 2005 amended opinion, which states: “[21] First, we must discern what ‘any such facility’ means. ‘Any such facility’ refers back to the phrase ‘terminal, dock, or other facility,’ which appears earlier in the statute. ‘Any such facility’ here includes the entire terminal or facility— BP’s self-termed Cherry Point Marine Terminal—not just the proposed northern dock extension by itself. When analyzing capacity, courts should therefore not look to the capacity of the refinery, but rather to the capacity of the terminal. Such an understanding is supported by the legislative history of the amendment; just before passage of the amendment, Senator Magnuson remarked: ‘In fact, the amendment only applies to construction or alteration of dock facilities in the Puget Sound region, not to refineries as such.’ 123 Cong. Rec. at 32,910.” p. 2532 https://cdn.ca9.uscourts.gov/datastore/opinions/2005/03/03/0136133.pdf
Only 22 years of lawsuits!
In less than the end of this century, oil will almost certainly be a significantly smaller factor as a source of energy as most the developed world is moving towards renewable energy. It’s going to be near impossible to do it much quicker unless there is a significant new energy technology breakthrough. The shift to electrification is not going to happen as quickly as planned because it’s going to take massive amounts of copper, lithium, and a host of other extractive materials to build both the infrastructure and new products. Virtually every new extractive program is either on native “sacred lands” and/or mired in years of lawsuits. All of that is legal, but also are roadblocks to where the world is trying to get to to keep global warming from exceeding what is predicted to happen.
Tanker traffic will always be an environmental risk. But oil tankers (I’ve been told) now have double bottoms … that significantly reduces the risk of an Exxon Valdez type catastrophe. And Washington State has intelligently pre-positioned emergency standby tugs and oil containment booms … so I sense the chance of a catastrophic accident has been markedly reduced, but it will never be zero.
Think it would be informative to all to have a summary of oil tanker spills and what caused the spill in Washington State and Salish Sea waters say since the year 2000 to help put the risk of some additional crude oil tanker traffic into perspective.
Great article, Lovel. I am sorry I am just seeing this now. Doubling tanker traffic is not going to benefit anyone except the Industry. The history laid out is vulgar and corrupt.
The justification for continuing with this amount of tanker traffic with no real plan for handling – let alone containing, which is impossible – a big spill, is chilling in its implications. In 2000, the Army Corps already made a very bad decision impacting life in the Salish Sea. How the Corps managed to allow this with no EIS is nauseating.
Oil exports are ecologically and financially one of the stupidest ideas ever carried out, endangering all life in the ocean and therefore all life on land. But nothing is mentioned on that except more justification and nitpicking hair-splitting. Amazed that no one thinks of us buying back the crude we sent to Asia and elsewhere – US and mainly Canada’s refined oil sold back to us at top dollar – never mind the dangers to the Arctic waters and the last strongholds of something not so polluted it can still function as it has always functioned – til the oil and fossil fuels boom. Why are we exporting raw resources? Who stands to make the most on such a short sighted and short-term-gain long-term pain idiotic idea? It’s sociopathic.
Nobody wants to face using less energy, which would slow down the madness. Turn down the thermostat, wear a sweater, stop chopping down hardwood forests and look to technologies that were squashed because they were too efficient. One thing is sure: there is no ‘clean’ energy – all forms take their toll on the earth so the logical thing to do is to look at US and our use and try to figure out more efficient ways to build, to live together, ETC..Anthropocentric thinking and systems are what got us here and are destroying and risking life on earth. Some cultures get it that we’re all relations – animals, plants, birds, peoples, marine life.
These laws are corrupt, driven by the fossil fuel industry and lobbyists who gain the most profits from them. Most lobbyists either worked for the corporations they represent, or work for them after they win new less protective laws environmentally – or both.. How can the Earth withstand such ill treatment and lack of caring for it?