Court gives green light for water pollution lawsuit to proceed, major implications for coal shipper
SPOKANE, WA--The U.S. District Court for the Eastern District of Washington denied a motion to dismiss, allowing the Clean Water Act case to proceed against BNSF Railway Company (BNSF) for coal contamination of U.S. waterways. The Sierra Club, Puget Soundkeeper, Columbia Riverkeeper, Spokane Riverkeeper, RE Sources for Sustainable Communities, Natural Resources Defense Council (NRDC), and Friends of the Columbia Gorge, filed the lawsuit on July 24, 2013, after finding substantial amounts of coal in and along several Washington waterways near BNSF rail lines. A similar case is also pending before the Western District of Washington in Seattle.
According to sworn testimony by BNSF Vice President of Transportation, Gregory Fox, "BNSF estimates that up to 500 pounds of coal dust may be lost from the top of each car." The company currently sends four uncovered coal trains through the state every day, each with an average of 120 rail cars. Based on the company's figures, BNSF's trains lose an estimated 240,000 pounds of coal dust along its route daily.
"This victory is the first step in holding BNSF accountable for their continual pollution of our waterways," said Cesia Kearns of the Sierra Club. "The court's decision to move the case forward is a step in the right direction to stop coal—and its toxic associates, lead, arsenic, and mercury—from further poisoning our fish, our water, and our families. We take these threats seriously, and after today’s court decision we hope BNSF finally will too."
The conservation groups point to BNSF's long history of violating the Clean Water Act, which plainly states that dumping of any kind into a U.S. waterway without what is known as a National Pollutant Discharge Elimination System (NPDES) permit, is a violation of federal law. Each violation of the Clean Water Act carries a fine of $37,500, and the plaintiffs assert that every rail car that loses coal is considered a unique violation - a hefty number when considering four trains a day, at 120 cars each travel through Washington.
"BNSF should focus on cleaning up its act instead of facing substantial fines for polluting America's rivers," said Morgan Wyenn, attorney with NRDC. "We're committed to holding BNSF accountable for its violations of the Clean Water Act and protecting our waterways from toxic coal dust."
The implications of the case are monumental, as the Northwest has become ground zero in the fight to stop three proposed coal export terminals in Washington and Oregon. If built, Washington communities like Spokane would see an increase of 42 additional uncovered coal trains per day. Residents already experiencing the results of four uncovered daily coal trains say that they hope that this lawsuit will teach BNSF a lesson in corporate responsibility.
"BNSF's plans to increase its daily coal train traffic by more than ten times the current amount is a testament to how important it is that they swiftly and responsibly find a solution to their coal pollution problems before further damaging our precious waterways, like the Spokane River," said Bart Mihailovich, director of Spokane Riverkeeper. "If they want to continue to be in the risky business of shipping coal, they need to assume responsibility for all of the costs that go along with it. Washingtonians are fed up with subsidizing their dangerous operations with the health of our families and communities."
“We hope that BNSF will start taking their coal dust pollution problem seriously instead of looking for loopholes,” said Brett VandenHeuvel, Executive Director of Columbia Riverkeeper, an organization that works to reduce toxic pollution and protect salmon in the Columbia River. “It’s time to put an end to illegal pollution and work to restore our waterways.”
BNSF is the second largest coal shipper in the nation, shipping coal through 28 states and near countless bodies of water. The original Clean Water suit was filed against BNSF in Washington’s Western District on June 5, 3013.
"This milestone in our case sends a clear message to BNSF and the coal companies that communities along the rail line value clean water and corporate accountability over the profits of big business," said Crina Hoyer, executive director of RE Sources for Sustainable Communities.
The plaintiffs are represented by the Law Offices of Charles M. Tebbutt, P.C. of Eugene, OR, Andrea Rodgers Harris of Seattle, WA, Jessica Yarnall Loarie of the Sierra Club Law Program, and David Pettit and Morgan Wyenn of the Natural Resources Defense Council.
For Immediate Release
January 8, 2013
Crina Hoyer: RE-Sources, 360-223-8678
Kimberly Larson, Power Past Coal: 206-388-8674
Amanda Starbuck, Energy Finance Program Director with Rainforest Action Network: 415-203-9952
Goldman Sachs Sacks Coal Terminal Investment
Power Past Coal coalition partner reaction to news that Goldman Sachs is no longer an investor in Carrix and the coal export terminal at Cherry Point in Washington State:
Goldman Sachs Infrastructure Partners has sold off its remaining equity investment in Carrix, the parent company of Pacific International Terminals (PIT) and SSA Marine (they were 49% stakeholders). PIT, SSA Marine and Peabody Energy have proposed a 48 million ton per year coal export terminal north of Bellingham, WA at Cherry Point. If built, it would be the largest coal export terminal in North America and would mean up to 18 coal trains traveling round-trip through local communities. The move comes after coal companies and their proponents have tabled or dropped three out of six proposed coal export terminals in the Pacific Northwest in the last two years. The new investor is Fernando Chico Pardo, a Mexican businessman.
Statement from Crina Hoyer, Executive Director of RE Sources for Sustainable Communities:
“Goldman Sachs’ stepping away from coal export is yet another sign from Wall Street that coal export is a losing investment. We already know that local Main Street businesses would feel the negative impacts from coal export, and communities across the region are saying no to this bad deal because of health, climate, environmental and economic impacts. We can do better than coal export both in Bellingham and the Northwest.”
Recent financial records have shown several of the companies are on shaky financial ground and market analysis by Goldman Sachs, Bernstein Research, Deustche Bank, Bank of America and other market exports saying that coal demand abroad is likely on a permanent decline. Of note, Goldman Sachs wrote in an analysis in July of 2013 and “We believe thermal coal demand growth will slow down in the coming years. . . the potential for profitable investments in new thermal coal mining capacity is becoming increasingly limited.”
POWER PAST COAL is an ever-growing alliance of health groups, businesses and environmental, clean-energy, faith and community organizations working to stop coal export off the West Coast. Visit www.powerpastcoal.org for more information
President Obama Outlines Plan to Cut Carbon Pollution from Power Plants and Address Climate Change
Leaders Applaud President for “backing up his strong words with strong action.”
June 25, 2013 – Washington, D. C.: Leaders from several top civic, progressive, environmental and public health organizations (listed below) today released the following statement in response to President Barack Obama’s plan of action to address climate change:
“We applaud President Obama for laying out a broad and common-sense plan for meeting our obligation to protect future generations from climate change. Americans are feeling the impacts of climate change already from destructive and deadly storms like Hurricane Sandy, to droughts, and wildfires. President Obama’s decision to take action to cut carbon pollution from existing power plants for the first time ever is particularly important since power plants are the largest unlimited source of carbon pollution and cleaning them up is key to protecting Americans from the impacts of climate change.
“The President is demonstrating leadership to reduce the pollution that fuels climate change and extreme weather, protect public health, and spur a rapid transition to clean, renewable energy. We applaud the president for moving to back up his strong words with strong action.
“President Obama’s plan puts us on the path to addressing climate change in ways that benefit the economy and gives industry flexibility to meet targets at the lowest possible cost. We thank President Obama for making climate change a priority and for taking action to cut carbon pollution from power plants.”
Margie Alt, Executive Director, Environment America
Frances Beinecke, President, Natural Resources Defense Council
John Podesta, Chair, Center for American Progress
Trip Van Noppen, President, Earthjustice
Michael Brune, Executive Director, Sierra Club
Gene Karpinski, President, League of Conservation Voters
Fred Krupp, President, Environmental Defense Fund
Elisabeth MacNamara, President, League of Women Voters of the United States
Northwest Leaders Testify to Congress on Coal Exports:
It’s Coal Export vs. Jobs and the Environment
Army Corps Rejects Call for Area-Wide Review of all Northwest Terminals, Focus Pivots to Each Terminal and Critical Role of State Officials, Agencies for Thorough Review
Washington, D.C. Seattle Mayor Mike McGinn and Climate Solutions Policy Director and Power Past Coal representative KC Golden testified at a congressional hearing on the environmental, health and economic impacts from coal exports. The House Energy and Commerce subcommittee on Energy and Power held the hearing on U.S. Energy Abundance: Regulatory, Market, and Legal Barriers to Export.
“This is not a jobs vs. environment situation. It’s a coal export vs. jobs and the environment situation,” stated Golden in his testimony. “In a region that places a high economic and cultural value on innovation and quality of life, coal export would commit some of our most valuable resources to a low-value, high-impact, economically unsound use. In a region that aims to pioneer and export sustainable prosperity, coal export would position us as promoters and suppliers of unsustainable fossil fuel development to the world. In a region that depends on climate stability for its water, food, and power supplies – coal export would make us merchants of climate disruption. As Pete Knutson, owner of Loki Fish Company said: ‘Anyone who claims that this massive coal project is about jobs had better learn to subtract. We’re weighing jobs based on the one-time exploitation of a fossil fuel versus livelihoods based on a sustainable resource.’”
At the same hearing, Jennifer Moyer, the Acting Chief for Regulatory Program for the Army Corps of Engineers revealed in her testimony the federal agency would not be conducting an area-wide review of the proposals coal export terminals in Washington and Oregon.
Over 500 businesses, 160 elected officials, including Seattle Mayor McGinn who testifying at the congressional hearing, both Governors Kitzhaber and Inslee and ten members of Congress, three dozen municipalities, over 100 organizations, 600 health professionals and over a dozen newspapers, including the region’s largest The Seattle Times, have called for a full and thorough review of the proposed terminals. At least 35,000 citizens wrote to the Army Corps calling for an area-wide EIS. Eleven organizations of the Power Past Coal coalition recently petitioned the Corps for the area-wide EIS.
“We recently called on the Army Corps to stop sitting on their hands and move forward with an area-wide review, and they responded with willingly putting their blinders on,” said Cesia Kearns, Senior Campaign Representative for Sierra Club’s Beyond Coal Campaign and Acting Director for Power Past Coal coalition of which Sierra Club is a member. “It is a mistake for the Army Corps to leave us all in the dark about the real-life impacts coal export would cause across the West. But if the Corps won’t undertake an area-wide review, we certainly expect them to follow the law, and for our state leaders and agencies to step up and for them all to do a full and thorough review of the all impacts at each of the proposed coal export terminals, including at Port of Morrow in Oregon.”
There are currently three active coal export proposals in Washington and Oregon at Cherry Point, WA (north of Bellingham), Longview, WA, and Boardman, OR that would export a total 100 million metric tons per year if all built. While Cherry Point and Longview are in initial stages of the EIS process, the Army Corps has not yet required a site-specific EIS at the Port of Morrow terminal at Boardman, and permit approvals there may go forward after an even more truncated environmental analysis. Many inland rail-line communities could experience up to 40 mile-and-a-half long coal-trains per day if all three terminals were built.
“When the first coal export terminal was proposed three years ago, coal backers thought they could get quick and dirty approval without much public attention. They were wrong,” Kearns continued. “Northwest communities have continued to call for sunlight and truth when looking at the impacts from coal export. Our governors and state agencies should not be bullied by the coal companies and see through the full and thorough review.
The tens of thousands of citizens and hundreds of groups, businesses and elected officials have called for a full and thorough reviews to include impacts from increased mining in Wyoming and Montana, particularly on public lands; increased rail traffic throughout Wyoming, Montana, Idaho, Washington, and Oregon; traffic, pollution, safety, health, and congestion issues along the rail line between Powder River Basin area coal mines and the Pacific Northwest terminal sites; the effect of coal export on domestic energy security and pricing. Reviews also need to look at the effects of significantly increased barge and cargo ship operations on the Columbia River and in Puget Sound and combined vessel traffic impacts and oil spill risks in the transpacific navigational routes including the Gulf of Alaska and Unimak Pass. The Corps and other agencies should also consider effects on global consumption of coal due to the effect of the operation of export terminals on international market prices, and resulting increased greenhouse gas emissions and air pollution impacts from coal combustion in China, including mercury and other contaminant deposition in Pacific Northwest waters. Groups and individuals have asked for hearings to be held around the region on any and all the proposals.
“It is ironic that today the Army Corps also announced the need for a stronger levee system because of growing climate impacts,” said Golden. “Let’s make these decisions in the full light of day. We’re confident that the facts will speak for themselves,” Golden concluded in his testimony to the subcommittee on Tuesday.
POWER PAST COAL is an ever-growing alliance of health, environmental, businesses, clean-energy, faith and community groups working to stop coal export off the West Coast. Visit PowerPastCoal.org for more information.Immediate Release: 5/8/13
Brett VandenHeuvel, Executive Director, Columbia Riverkeeper, 503-348-2436
Darrel Whipple, member of Clean Columbia County and resident near Rainier, OR (attended meeting where Kinder Morgan made statement), 503-556-9838
Another one bites the dust:
Kinder Morgan drops plans for coal export terminal at Oregon port
St. Helens, OR – This morning Kinder Morgan announced its decision to walk away from plans to build a massive coal export terminal near Clatskanie, Oregon along the Columbia River. The announcement is sending shockwaves across the Northwest, where coal export companies have faced unprecedented opposition from local residents, business owners, public health professionals, elected officials, farmers, conservationists, and many others.
“This is another huge victory for the people of Oregon and another blow to the coal companies,” states Brett VandenHeuvel, Executive Director for Columbia Riverkeeper. “The evidence is in that dirty coal export plans are not viable in the Pacific Northwest. Now families across the Northwest can breathe easier knowing that the largest coal export terminal proposed in the State of Oregon is off the table. Another one bites the dust.”
In January 2012, Kinder Morgan and the Port of St. Helens entered a lease option for the company to build a 15 to 30 million ton per year coal export terminal to serve markets in Asia. Overwhelming opposition across Oregon and the Northwest has trailed the proposal since Kinder Morgan proposed the deal. According to residents who attended a Port Commission meeting earlier today, Allan Fore, representative for Kinder Morgan, announced that the company would no longer pursue the project. The Kinder Morgan lease was not on the Port’s meeting agenda.
Originally there were six proposed coal export terminals in the Pacific Northwest, and now three are either dead (Grays Harbor, WA and Kinder Morgan’s St. Helens proposal in OR) or tabled (Coos Bay, OR). Kinder Morgan’s announcement came just two days after 100 people attended a hearing to oppose the Port of St. Helens seeking to rezone new industrial land that could be used for a coal terminal, and after the City of Scappoose passed a resolution of concerns about coal export.
Columbia Riverkeeper is part of the Power Past Coal coalition. POWER PAST COAL is an ever-growing alliance of health, environmental, businesses, clean-energy, faith and community groups working to stop coal export off the West Coast. Visit PowerPastCoal.org for more information.
FOR IMMEDIATE RELEASE
Tuesday, April 2, 2013
Contact: Krista Collard, The Sierra Club, (614)622-9109
Michael Lang, Friends of the Columbia Gorge, (503) 490-3979
Chris Wilke, Puget Soundkeeper Alliance, (206)297-7002
Brett VandenHeuvel, Columbia Riverkeeper, (503) 348-2436
BNSF RAILWAY, COAL SHIPPERS RECEIVE NOTICE OF INTENT TO SUE FOR COAL CONTAMINATION IN WATERWAYS
Coal export proposals would worsen existing water pollution
SEATTLE—Today, the Sierra Club and its partners sent a 60-day notice of intent to sue to Burlington Northern Santa Fe Railway (BNSF) and several coal companies for violations of the federal Clean Water Act. The Sierra Club, Puget Soundkeeper, Columbia Riverkeeper, RE Sources for Sustainable Communities, and Friends of the Columbia Gorge have found evidence that the companies are responsible for emitting coal into waterways in many locations across Washington.
BNSF Railway, owned by Warren Buffett’s Berkshire Hathaway, is one of the largest coal transporters in the United States. It is responsible for hauling an average of 480 open-top rail cars carrying coal through Washington daily. In addition to posting a report to its own website, BNSF also testified at hearings before the Surface Transportation Board that each rail car loses an average of 500 pounds of coal dust per trip. Current coal trains are composed of approximately 120 rail cars, resulting in an average of 30 tons of coal being lost per train trip. Longer trains are expected in the future should new export terminals be built.
“BNSF and other railroads haul coal around the U.S. every day. Coal shippers and railroads know that coal pollution of our waterways is a serious problem and yet for years we’ve watched them point the finger about who pays to resolve the issue,” said Cesia Kearns, Campaign Representative of The Sierra Club’s Beyond Coal Exports campaign. “The blame game stops here.”
By BNSF’s own figures, the four daily coal trains travelling through Washington heading to Canada or to the state’s last remaining coal plant combine to lose a staggering 120 tons of coal dust per day. Local residents and conservation groups are concerned that the problem will only worsen if coal companies receive approval to move forward with their hotly contested plan to develop five coal export sites in Washington and Oregon, which could send an additional 60 trains through Washington daily.
Coal mined in the Powder River Basin located in Wyoming and Montana breaks apart easily and contains mercury, arsenic, uranium, and hundreds of other heavy metal toxins harmful to fish and human health. Under the Clean Water Act, anyone dumping pollutants or fill into U.S. waters must first obtain what is known as a National Pollutant Discharge Elimination System (NPDES) permit or a Section 404 dredge and fill permit.
“Coal is a toxic pollutant and this action today seeks to stop illegal pollution and keep our river free of dirty coal,” said Brett VandenHeuvel, Executive Director of the Columbia Riverkeeper. “The threat of coal export makes this lawsuit even timelier.”
Chris Wilke, Executive Director of Puget Soundkeeper Alliance, is concerned about the amount of coal showing up in waterways and what threats the trend poses to aquatic life in the region.“Salmon are hugely important to our region: ecologically, culturally and economically,” Wilke said. “We know salmon are acutely sensitive to the same toxic compounds found in coal and that many of these toxins can be transmitted up the food chain. It’s a very serious issue.”
Also threatened by coal dust pollution is the Columbia River Gorge National Scenic Area, shared by Washington and Oregon. Its natural scenic beauty and ample opportunity for fishing and windsurfing attracts hundreds of thousands of recreational sports enthusiasts every year, making it a top revenue builder in the region. Despite being designated as a National Scenic Area by Congress 1986, coal trains have polluted land and waterways along the 85 miles of train tracks on its Washington side.
“The Columbia River Gorge is a national scenic treasure, but the railroad is treating it like a dumping ground for coal,” said Michael Lang, conservation director for Friends of the Columbia Gorge. Based on BNSF’s reports, each coal train is dumping up to 10,000 pounds of coal into the Columbia River Gorge. “This is unacceptable and illegal. If coal export proposals are approved, coal pollution from 30 full coal trains per day would destroy everything Congress and the state of Oregon and Washington have worked so hard to protect in the Columbia River Gorge,” said Lang.
Paul Anderson, a longtime Bellingham resident and a self-described “dues-paying union member” at Boeing, has long been a critic of the plans to export coal through Northwest ports to be burned in Asia. “I hope that these serious violations will send a strong message to the Army Corps of Engineers that more expansive reviews are needed,” said Anderson.
The Army Corps of Engineers is the agency responsible for conducting an area-wide study of the impacts for all of the coal export proposals, but no announcement of the study has been made and patience is growing thin among residents who feel that the agency has eschewed its obligation.
“BNSF’s rampant coal pollution of our waterways demonstrates the latest in a series of problems with shipping coal through our local communities,” said Matt Krogh, North Sound Baykeeper at RE Sources for Sustainable Communities. “Unfortunately, it’s the perfect example of why we need a robust study outlining the consequences to our health, safety, economy, and climate if we’re increasing coal train traffic nearly ten-fold through our communities.”
BNSF has 60 days to resolve the problem of coal emissions from its trains. If a solution cannot be reached during this time, then the groups will proceed with a lawsuit in federal court.
The notifying organizations are represented by the Law Offices of Charles M. Tebbutt, P.C. of Eugene, OR, Andrea Rodgers Harris of Seattle, WA, and Jessica Yarnall Loarie of the Sierra Club Law Program.
FOR IMMEDIATE RELEASE
Monday, April 1, 2013
Northwest Communities Score Major Victory:
Coos Bay Coal Export Project Derailed
Coos Bay, OR— Today, the Port of Coos Bay stands alone in its efforts to develop a terminal for coal exports, as the last project proponent, California-based Metro Ports allowed its exclusive negotiating contract with the Port to expire 3/31/13. Last month, Metro Ports filed a 30-day extension of the negotiating contract after learning that the last two companies being courted as partner investors, Japanese-based Mitsui Company and Korean Electric Power Corporation, lost interest in the project.
On behalf of the Power Past Coal coalition, David Petrie, Director of Coos Waterkeeper, issued the following statement in response:
“We are heartened that Metro Ports, the sole remaining interested project proponent, finally joins Mitsui and Korean Electric Power Corporation in seeing the Port of Coos Bay’s coal export proposal for the bad project it is.
“As coal export proponents desperately seek to develop the other four proposed coal export terminals in Oregon and Washington, should take notice of the independent decisions made by Metro Ports, Mitsui, Korean Electric Power Corporation, Portland General Electric, and RailAmerica to walk away from these risky projects before it’s too late.
“With fluctuating markets, massive opposition from communities, local businesses, health professionals and elected officials across the region, and the hundreds of millions of dollars in rail and bridge infrastructure needed to make the project viable, it is hard to imagine that anyone would want to risk getting in bed with risky and desperate coal industry.”
POWER PAST COAL is an ever-growing alliance of health, environmental, businesses, clean-energy, faith and community groups working to stop coal export off the West Coast. Visit PowerPastCoal.org for more information.
City of Seattle
Office of the Mayor
For Immediate Release
March 28, 2013
Contact: Aaron Pickus, Mayor’s Office
Tel: (206) 233-2650
Additional materials and photos: http://www.seattle.gov/media
Mayor applauds PSRC for conducting regional economic impact study of coal trains proposal
Study comes at request of Mayor McGinn, will analyze impacts to central Puget Sound region
SEATTLE – Today the Puget Sound Regional Council approved conducting a regional economic analysis of the proposed Gateway Pacific Coal Terminal in Whatcom County at the request of Mayor Mike McGinn. The study will help inform the Transportation 2040 update and the 2014 release of the Environmental Impact Statement on the coal trains proposal. The scope of the study is expected to include an analysis of current and future impacts on trade and development, property values, land use, employment and railway congestion within the central Puget Sound region.
“I applaud the Puget Sound Regional Council board for their commitment to helping conduct a comprehensive review of the coal trains proposal in Washington State,” said McGinn. “We are concerned about the negative impacts of these coal trains to our city’s transportation network, recovering economy and the public safety and health of our residents. Today’s decision is the latest sign of the growing concerns about the local impacts of exporting coal to China.”
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