Friday, December 30, 2011

Coal: Why Can't We Citizens Have A Strong Voice?

This article appeared in today’s paper and was forwarded to me:

Dec, 30, 2011

Activists plan initiative to outlaw coal trains in Bellingham


BELLINGHAM - Ever since the plans for SSA Marine's coal shipping terminal at Cherry Point became public, city officials have been saying that they would have no direct control over the coal trains that would pass through the city if Gateway Pacific Terminal is built.

A new citizens' group plans to change all that, but they seem to face overwhelming legal odds.

Rick Dubrow, owner of A1 Builders, is one of the key organizers of a new political action committee called No Coal! On Jan. 26, Dubrow said the group will make public its draft of a proposed new city ordinance that would prohibit any transport of coal through Bellingham by rail or any other means.

In conventional legal terms, that doesn't seem to make much sense. The federal government regulates the interstate rail system, and BNSF Railway Co. has a legal right of way through the city. BNSF spokeswoman Suann Lundsberg said federal law requires the railroad to ship coal and other legal cargoes that shippers want to move via rail.

But Dubrow and Stoney Bird, a former corporate attorney working with the Bellingham group, say they are setting out to establish some new legal groundwork that would put the rights of communities and ecosystems on equal or greater footing with the rights of railroads and other corporations.

They are taking their cue from the Community Environmental Legal Defense Fund, which was involved in a successful 2010 effort to get the Pittsburgh, Pa., City Council to ban fracking for natural gas within the city limits.

On its website, that group's activists argue that existing environmental regulations do little more than slow the pace of ongoing environmental destruction. They envision a legal system that would recognize something they call the Rights of Nature.

In Pittsburgh, the council adopted a proposed anti-fracking ordinance without a citizen vote. Dubrow said he and his group would be open to that approach in Bellingham, as long as the council would be willing to pass their proposed ordinance as is.

"We don't want to give them (council members) the freedom to edit it,' Dubrow said. "We hesitate to allow editing because of the complexity of the legal aspects of the ordinance."

The group is also prepared to launch a petition drive to get the measure on the ballot if it comes to that, Dubrow said.

If such a petition drive were successful, BNSF or SSA Marine could challenge the initiative in court before a public vote is held. In the recent anti-traffic-camera initiative case in Bellingham, American Traffic Solutions went to court to get the initiative off the ballot. The courts eventually allowed the initiative to stay on the ballot, but judges ruled that it was not legally enforceable. Camera opponents are appealing.

In 2000, citizens collected enough signatures to get a referendum challenging a cut in Georgia-Pacific Corp.'s industrial water rates onto the ballot. But then-Mayor Mark Asmundson and the City Council refused to act on the matter, on grounds that prior court cases had clearly established that water rates were not subject to a public vote. Backers of the referendum expressed outrage but did not take the city to court, and no vote was held.

In 2001, a pro-business group tried to use a city referendum to challenge hefty new city storm water fees, but Whatcom County Superior Court Judge Steve Mura accepted city attorneys' argument that city utility rates were not subject to public vote. Mura's ruling kept the matter off the ballot.

Craig Cole, an SSA Marine spokesman, had little to say about the No Coal! ordinance plan. In an email, he indicated that railroad operations are beyond the scope of city authority.

"Such matters are governed by federal and state constitutions and laws," Cole said.

Reach JOHN STARK at or call 715-2274.


Personally, I'm glad this is happening, legalities notwithstanding.

Our community needs to step up and make itself heard on this controversial issue; indeed if we don't, who will?

My perspective is that of someone who has confronted matters like this one from the side of a concerned citizen, as well as an elected official whose term of office encompassed the cases cited -namely the water rate referendum and the storm water complaints.

In both instances, I heard the arguments pro & con, then decided what decision ought to have been made.

The water and storm water rates were clearly necessary to make the respective utilities sustainable, and also clearly the City Council's responsibility to decide. But, we did listen to citizen complaints and also appreciated the dialogue that was generated, because that was important to understand before a final decision was made.

The water rate 'issue' wasn't just about the GP process water rates, either; it was about two things -setting a less complicated formula for determining the GP rate [which was actually higher than the old one, not less] and responding to pressure from a public initiative to increase treated water rates in order to help protect Lake Whatcom, our drinking water RESERVOIR.

Neither the referendum or the initiative passed, but the latter raised public awareness enough for the Council to decide later to raise water rates by $5 per month [versus the $12 per month advocated by the initiative].

The storm water rate increase was necessary by State & Federal mandate, once the City decided to adopt new rules to cover not only flood and erosion damage, but treat pollution as well. Additionally, had the new storm water rates NOT been adopted, the impacts to the existing street funds was substantial, since the costs of storm water management were being simply deducted from those limited funds.


As far as Federal or State jurisdiction over local matters is concerned, the City of Bellingham, by taking the strong stand it did, was able to influence significant changes to safety regulations for Pipe Lines, both intra-state and inter-state, despite the claims of the Olympic Pipe Line Company, whose liquid petroleum products pipeline ruptured in its Right Of Way [through City property], and spilled toxic fuel into Whatcom Creek that resulted in the terrible explosion that killed three young people and caused much damage to property, the environment and social confidence.

So, don't tell me citizen outrage doesn't work!

It does work, but it shouldn't take a major catastrophe to prove it.

That is what much of the concern over coal trains & terminal is about; preventing terrible things from happening BEFORE THEY DO.

That is called simply the Precaution Principle, and it was early expressed by none other than our Founder, Ben Franklin, who put it this way; 'a stitch in time saves nine'.


I believe a strong expression of concerns -the more explicit the better- must be voiced by citizens so it can be heard and acted upon by our local elected leaders, namely the Mayor and City Council.

The earlier this happens, the better.

And the oftener it happens is also better.

The last thing we want to do as citizens with legitimate concerns is to keep quiet about them, leaving such 'external' decisions to a vague 'other' that prefers the comfort of status quo!

So, yes, I will support any well-conceived initiative that comes forth on this 'inconvenient' subject, and I will encourage our new Council and Mayor to do nothing less, notwithstanding any 'legal; arguments to the contrary.

If folks want to sue us or the City, let them sue!

This nasty subject needs to be dragged out into the arena for resolution in the sunshine, not in some dark place remote from us and our families.

And, if the judges should rule against it [us], we will then need to redouble our efforts to change these present 'legalities'.

If I am more than willing to suffer some 'inconvenience' over this matter; how about you?

So, answering the question in the title; 'we can if we will'!


This article on a related matter seems to chill the atmosphere regarding whether Federal or State rights & regulations prevail.

And, I'm sure that was the intent in seeking the judgement in question; to put 'corporate citizens' in charge of what can be done in the State of California.

California has huge and diverse problems, many of its own making, but fortunately it has also taken strong and progressive leadership in protecting its air, water and earth from continued poor stewardship from those who create these harms in the name of 'business'.

Thank goodness for California's lead in changing fuel economy and quality standards that have succeeded in changing the way corporations, institutions and people conduct their business! Without it's lead, do you think the Federal government would have done much on its own?

Air pollution got so bad in the LA Basin that it was affecting everyone's business -including their health- so much that something had to be done!

Now, years later, LA air is better; but it took strong action years ago to effect that change.


One last thought before this ends; if corporations have rights, do these include doing whatever they want, as much as they want, whenever they want and wherever they want?

What limits apply?

Do these claimed 'rights' extend beyond their own rights-of-way and property to the property, space and environment of those other citizens - people?

How about public property; like transportation systems and networks, waterways, airways and the like?

Where exactly do corporate rights end?

Aren't corporations supposed to provide public good? If so, how much? How much harm?

I'm only asking because something doesn't feel right about the arguments I'm hearing from the Coal proponents.

No, not right at all!

If I'm wondering, maybe others are experiencing the feeling, too.

And, maybe -just maybe- others will be willing to extend their wonderment into something more tangible; like action?

Citizens inherently do have strong voices; they just have to use them!