Appeals court rules against BP refinery near Bellingham

By Ian Ith
Seattle Times staff reporter

	Fred Felleman
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A huge, new oil-refinery terminal in northern Puget Sound may violate a 27-year-old federal law written to protect the Sound from the risk of oil spills, a federal appeals court ruled yesterday.

In what environmentalists called a significant victory, the 9th Circuit Court of Appeals also ruled that the Army Corps of Engineers should have completed a full environmental review before allowing the big, new dock at the BP refinery at Cherry Point near Bellingham.

The overall effect on BP's refinery operations is unclear; however, the ruling won't immediately halt BP's use of the dock.

A BP spokesman said the company was disappointed but it was too early to say what its next steps might be.

Still, environmentalists said it could be a first step in forcing BP to significantly scale back its crude-oil shipments. The dock doubles the refinery's shipping capacity.

"I think it's irrefutable that as a result of this decision, there will be a significant reduction in the risk of an oil spill in our region," said Fred Felleman, director of Ocean Advocates, one of four organizations that appealed the case.

At the core of the ruling is whether the Army Corps of Engineers should have allowed the dock at all.

A 1977 amendment to the Marine Mammal Protection Act, called the Magnuson Amendment after the late Washington senator who promoted it, froze the levels of crude oil being shipped into Puget Sound bound for markets outside the state.

BP has said the new dock won't affect its crude-oil capacity because the dock is only used for refined petroleum. But Ocean Advocates argues that the dock allows increased crude-oil shipments by freeing up tanker space on its original dock.

Yesterday's ruling also rejected an earlier decision by U.S. District Judge Robert Lasnik that the project did not need a full environmental-impact statement.
 
Environmentalists said they fear the dock increases the risk of oil spills that could harm ailing species at Cherry Point, notably fast-declining herring schools and the threatened marbled murrelet.

The corps said a full review was not needed because the oil company told them the dock would reduce spill risk by cutting the time tankers would spend idling at sea waiting to dock.

The 9th Circuit, however, ruled that the corps' reasoning "fails to provide any reason, let alone a convincing one, why the Corps refrained from preparing an EIS."

A spokeswoman for the corps said yesterday that officials had not studied the ruling and had not decided whether to appeal it to the U.S. Supreme Court.

The 9th Circuit ordered Lasnik to determine whether the new dock indeed violates the Magnuson Amendment, but the court did not say what should happen if it does.

In the meantime, Felleman said he fears the industry's next step could be to lobby Congress to repeal the Magnuson Amendment altogether.

"Washington has a relatively good oil-spill record," he said. "But the only way to preserve that record is through ongoing diligence."

Ian Ith: 206-464-2109 or iith@seattletimes.com

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