Washington Journal of Social & Environmental Justice

The recent emphasis on building design, construction, and performance has revealed legal challenges and risks an owner or project team may face when attempting to construct a “deep green” building. The intent of this article is to encourage and facilitate the development of deep green and high performing buildings by reducing perceived and actual risks as well as challenges associated with their development, construction, and operation. This article explores these risks and challenges through a discussion of specific examples from two case study projects located in Seattle, Washington. These examples are arranged in two broad categories: (1) the process of achieving a deep green, high performing project, and (2) specific aspects of the technology employed to achieve deep green goals. As most technical challenges that the case study projects faced could be resolved through process improvements, the reader will note that solutions identified through the case studies are heavily weighted toward process. The authors’ recommendations, based on input from policy planners, construction lawyers, and leasing and operations professionals, are also heavily process-oriented. These recommendations include aligning code with municipal goals, integrating green codes, leading by example, leveraging existing regulations, developing demonstration ordinances (for policy planners), assigning risk reasonably, understanding appropriate responsibilities, encouraging an integrated process (for construction lawyers), and encouraging the use of green leases and collection of building performance data (for leasing professionals).

The world’s oceans have become approximately thirty percent more acidic since the Industrial Revolution and are currently acidifying at a rate ten times faster than anything the earth has experienced over the last fifty million years. Washington State is undertaking a groundbreaking effort to address ocean acidification, a global issue that has serious implications for the world’s oceans, marine ecosystems, and the individuals and communities that depend upon the services that they provide. These localized actions, in isolation, will be insufficient to effectively combat and adapt to the acidification of marine waters. While acknowledging this generally accepted premise, Washington has nonetheless determined to become a leader in responding to ocean acidification. This article discusses several reasons why this issue is being addressed at the state level and by Washington in particular, and examines the successes and challenges of, and lessons that can be learned from, Washington’s response to ocean acidification.

In the spirit of fostering interdisciplinary dialogue, the Washington Journal of Environmental Law and Policy is proud to present this Article. Professor Varanasi takes examples from her career as a fisheries scientist for the National Oceanographic and Atmospheric Administration to argue for a new model for ecological disaster planning and response, in which baseline ecosystem data is collected in advance of possible incidents so that decision-makers are empowered to make informed choices from the first stages of disaster response. She concludes by urging sustained and targeted funding for long-term ecosystem data collection to better understand various disasters’ effects on a region and to improve prospects for restoration of the degraded ecosystem and recovery of species.

The EPA currently regulates the Navy program Sink Exercise (SINKEX) under a permit issued under the Ocean Dumping Act. The Navy regards SINKEX as both a “live fire exercise,” important for the training of sailors in tactics and operations, and as a ship disposal program. Due to the toxic materials used to construct the derelict ships–including PCBs, asbestos, and lead–a case was filed in San Francisco District Court alleging that the EPA is required to regulate and permit SINKEX under the Toxic Substances Control Act (TSCA). This comment addresses the complexities arising from EPA permitting of SINKEX, including a comparison of the Ocean Dumping Act with the TSCA, military waivers and exemptions present in both statutes, and a discussion of possible interagency cooperation and enforcement measures this may implicate. This comment concludes that the most effective method for disposing of derelict ships while maintaining environmental and human health as well as national security is legislative reform and an increased budget for disposal.

Decker v. Northwest Environmental Defense Center is a recently decided Supreme Court case that originated in the forests of Oregon. Frustrated by the level of pollution in Oregon rivers that was originating from logging roads, an environmental group sued the State to enforce the Clean Water Act and require Oregon to issue National Pollutant Discharge Elimination System (NPDES) permits for the pollution. The Supreme Court held that the Environmental Protection Agency’s (EPA) decision to exclude water pollution from logging roads from NPDES permitting was entitled to deference, reversing the Ninth Circuit’s decision that such pollution required NPDES permits under the Clean Water Act and the EPA’s Silvicultural Rule. Part I will introduce the case and the issues more fully. Part II will provide the background to the case. Part III will discuss the case and its procedural history, focusing on the Ninth Circuit’s decision and the Supreme Court’s opinion. Part IV will discuss different policy models that may be useful to Oregon going forward. Part V will conclude that Oregon is still under pressure to change its policy, and that certain changes to its current regulations could reduce pollution from logging roads while still remaining cost-effective and with little administrative interference for the logging industry.

The Columbia River Treaty between the United States and Canada may be terminated unilaterally by either nation beginning next year; this has brough attention within the Pacific Northwest and beyond to the 1964 agreement on river flows. Much of the discussion about updating the accord highlights important goals such as bettering the protection of fish and increasing public participation in ecosystem governance, but often neglects analysis of how electricity markets have changed over the past fifty years. This Comment, through an examination of key developments in utilities law and application of economic theory, attempts to parse principles that may prove helpful in finding a solution to the agreement’s most contentious element—the “Canadian Entitlement” payments from the U.S. to British Columbia—from the puzzle of the Columbia River Treaty’s electricity piece.

We are proud to present the first installment of the Washington Environmental Law Year in Review. This feature, which will be published annually in the Fall issue, will track significant developments in the environmental laws and regulations of Washington, and present a summary of these changes organized by topic.

The West is witnessing early, important efforts to join water supply and land use planning, and the reality of climate change makes this convergence all the more critical. Local comprehensive planning presents itself as an existing and indispensable tool for unifying important planning efforts in the areas of land use, water, and climate change. As the primary regulators of land use, local governments are at the front line of regulating a myriad of environmental concerns. They are also integral partners in planning and implementing waterrelated initiatives alongside tribal, state, federal, and private partners. The West’s potential for broad-based action is greatly increased if water and climate become an essential, required element of local comprehensive planning. This article thus calls for a new, freestanding “water-climate element” in comprehensive planning that better prepares our communities for the important task of managing water in wise, resilient, and collaborative ways. Part I summarizes the first legal steps being taken to integrate water-land use planning, predominantly through assured supply laws. This first level of integration alone is no small task since it requires a realignment of historically separate legal spheres in which water law is the domain of the state and land use is the domain of the local government. Yet there is more to be done. Part II argues for an expansion of water-land use planning to include climate planning, and discusses the innovative work that some communities are generating in this area. Part III illustrates why model legislation for a “water-climate” element in comprehensive planning is a next, big step to bring land use, water, and climate together. It then describes the key provisions of such model legislation. The article concludes that if western states require local water-climate planning, there will be improved community preparedness and more robust interjurisdictional cooperation regarding shared land and water resources. Thus, a water-climate element is a practical and critical part of integrating water, land use, and climate planning in the West.

Washington, like most western states, exempts domestic groundwater use from water rights permitting requirements. The cumulative impact of exempt groundwater use threatens senior water rights and protected stream flows in certain arid parts of the state that have seen significant exurban and suburban development. Exempt domestic wells, however, are only exempt from requirements to obtain a permit and are still subject to regulation under the principles of prior appropriation; exempt well users can be forced to curtail their water use in order to satisfy the full extent of a senior water right. In Kittitas County v. Eastern Washington Growth Management Hearings Board, the Washington State Supreme Court held that county comprehensive plans must not allow evasion of water permitting requirements through the use of exempt wells. The Court clearly suggested that counties have an affirmative duty to ensure that applicants seeking permits to build or develop land have a legally adequate supply of water available. Some commentators express concerns regarding whether this is an appropriate role for counties to play in water management. This Comment argues that requiring counties to ensure the legal adequacy of a proposed water source when permitting development may actually provide an effective means to regulate exempt wells where their cumulative impact is significant. Counties are equipped to determine whether a permit applicant has access to a legal water source. The apparent regulatory structure following Kittitas County allows the Washington Department of Ecology to determine whether to close basins off for new withdrawals and for Ecology or some other expert entity to handle the details of administering mitigation banks, while the counties will be responsible for ensuring compliance by adding a small step to an existing permitting process.

The Bonneville Power Administration (BPA) is the primary transmitter of power in the Pacific Northwest. Charged with operating the federal dams on the Columbia River, the BPA also maintains and operates 15,000 miles of high-voltage power lines that transmit power produced by federal and non-federal power sources alike. Under federal law, the BPA must accept onto its transmission system power from non-federal sources in a manner that is fair, non-preferential, and does not discriminate against non-federal sources. Recently, strong snowpack and periods of heavy runoff have stressed the Federal Columbia River Power System and has led to a problem: the overgeneration of hydropower for which there is not enough capacity on the transmission system. Compounding this problem is the fact that wind power generation has greatly increased in the Pacific Northwest over the past decade, with no sign of significantly slowing down. The over-generation of power, in conjunction with the BPA’s statutory mandate to accept non-federal power sources, has created a challenge for the BPA: to maintain the reliability of its stressed power transmission system while fulfilling its obligation to accept, in a fair and non-discriminatory manner, power from both federal and non-federal sources. In an attempt to accomplish this task, the BPA began implementing a curtailment policy beginning in 2011 that, according to the Federal Energy Regulatory Commission, unlawfully discriminated against non-federal wind power producers. The BPA has since revised and updated its displacement policy; nevertheless, the BPA’s policies continue to unfairly discriminate against wind power producers by placing a preference on the generation and transmission of federal hydropower at the expense of non-federal wind power. Not only do these policies violate the BPA’s statutory obligations and requirements of the Federal Energy Regulatory Commission, but they also hurt the ability for utility companies in Washington to meet obligations to diversify energy portfolios as required by the Washington Energy Independence Act. Because wind power is the dominant renewable energy resource available to satisfy Washington’s new renewable portfolio standards (RPS), its curtailment is problematic for utility companies and consumers alike. This Comment evaluates the BPA’s past and existing curtailment polices, their impact on the ability to satisfy the goals of the Washington Energy Independence Act, and the ability for utility companies in Washington to meet RPS requirements.