Ruling reduces oil tanker traffic at Cherry Point

Attacking "self-serving claims" by oil giant BP Amoco PLC, a federal appeals court yesterday ruled that the company's expansion of a dock at its Cherry Point refinery was built without a required environmental study.

BP will have to reduce the amount of crude oil it takes to the refinery near Bellingham Point from Alaska's North Slope while the legality of the bigger dock is sorted out, a three-judge panel of the 9th U.S. Circuit Court of Appeals said.

Environmentalists say the bigger dock means more tanker traffic and a bigger risk of an oil spill.

The ruling rejects reasoning by BP and the Army Corps of Engineers, which authorized the work, that expanding the dock would not result in an illegal increase in the amount of crude oil being refined there.

"Increased tanker traffic elevates the risk of oil spills -- an undeniable and patently apparent risk of harm to Puget Sound," the court said. "An oil spill could destroy and disrupt ecosystems and kill or injure critical numbers of threatened and endangered species that live and thrive in the Cherry Point region."

Environmentalists and the state Department of Natural Resources have expressed concern that refinery operations may harm chinook salmon, which are protected under the Endangered Species Act, as well as the nearby spawning beds of Washington's largest stock of herring, a key fish in the regional food chain.

Federal scientists also say a big oil spill poses the greatest extinction risk for Puget Sound orcas.

The court's ruling marks a major victory for Ocean Advocates, three other environmental groups and a commercial fisherman. They cited a provision inserted into federal law by the late Sen. Warren Magnuson, D-Wash.

"This ruling is as strong as we could have hoped for," said Fred Felleman, Northwest director of Ocean Advocates. "It's a real affirmation that Magnuson's legacy is alive and well and protecting Puget Sound."

BP has argued that its $31 million dock expansion actually decreased the risk of an oil spill because it meant tankers spent less time at anchor -- where they are vulnerable to a mishap -- while waiting to unload crude.

The ruling means that, for now at least, BP can't take in any more crude than it did in 2000, when the oil company sought an extension of a construction permit from the Corps of Engineers.

"We're disappointed with the court's ruling," BP spokesman Mike Abendhoff said. "We've got our own legal team, and BP management looking at the decision and trying to determine how it applies to us; what the future implications are."

BP took over the refinery as a result of its 2000 merger with the Atlantic Richfield Co., which had applied for the dock expansion years earlier. The appeals court agreed with Ocean Advocates' argument that expanding the dock violated a provision of federal law enacted in 1977 at the behest of Magnuson. He wanted to prohibit so-called "supertankers" in Puget Sound.

Magnuson inserted into the Marine Mammal Protection Act a provision instructing federal agencies to reject any action that "may result in any increase in the volume of crude oil capable of being handled" at Sound refineries.

Ocean Advocates, which filed suit after the dock expansion was approved but before construction had begun, is not asking that the enlarged portion of the dock be demolished. Instead, it wants a full review of its impact through an environmental impact statement, a long and detailed process.

The appeals court took the Corps of Engineers to task for not requiring an environmental impact statement in the first place.

"This (corps) finding fails to provide any reason, let alone a convincing one, why the corps refrained from preparing an EIS," yesterday's ruling said.

The Corps of Engineers asserted -- mistakenly, the court noted -- that the refinery was operating at capacity, and therefore dock expansion could not possibly harm the environment. In fact, the number of tanker visits to the refinery was expected to increase by up to 36 percent over the past five years, the Department of Natural Resources has said.

"A patently inaccurate factual contention can never support an agency's determination that a project will have 'no significant impact' on the environment," the appeals court ruled.

The corps' decision allowing the dock expansion "includes absolutely no discussion about the tenability or reasonableness of BP's self-serving claims that the dock expansion would not increase vessel traffic," the court's ruling said. "... Common sense suggests that BP may have hoped that its sizable investment in the dock would facilitate its ability to handle a greater number of tankers a day, thereby increasing tanker traffic to the facility."

BP argued that it could take the crude oil to the refinery by pipeline or other means if the dock expansion were not approved. It also said the new dock would reduce the chance of oil spills because it would come equipped with high-tech equipment to contain any oil that might spill.

Finally, it argued that it wasn't actually increasing its plant capacity, so the dock really didn't matter.

U.S. District Judge Robert Lasnik previously ruled in BP's favor, saying Magnuson's amendment addressed capacity at the plant, not the dock.

A Department of Justice lawyer declined to comment on the ruling. Other department officials were not available yesterday for comment.

P-I reporter Robert McClure can be reached at 206-448-8092 or robertmcclure@seattlepi.com

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