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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II

COLUMBIA RIVERKEEPER; and                                                   No. 46130 -7 -II
NORTHWEST ENVIRONMENTAL
DEFENSE CENTER,


                                 Appellants,


SIERRA CLUB,


                                 Plaintiff,
                                                                     PUBLISHED OPINION
        V.



PORT OF VANCOUVER USA; JERRY
OLIVER, Port of Vancouver USA Board of
Commissioners President; BRIAN WOLFE,
Port of Vancouver USA Board of
Commissioners Vice President; and NANCY I.
BAKER, Port of Vancouver USA Board of
 Commissioners Secretary,



       MAXA, J. —    Columbia Riverkeeper and the Northwest Environmental Defense Center


Riverkeeper) appeal the trial court' s partial summary judgment order dismissing two of their six

claims against the Port of Vancouver. Riverkeeper' s claims relate to the Port' s agreement to

lease property to the Tesoro Corporation and Savage Companies ( Tesoro/ Savage) for

construction of a crude oil   transportation   facility.   Riverkeeper   asserts   that the Port   violated   the
No. 46130 -7 -II




State Environmental           Policy   Act ( SEPA),   chapter 43. 21C RCW, in entering into the lease

agreement.



          The parties agree that the Port' s execution of the lease is contingent on the project' s

certification
                    by the Energy Facility    Site Evaluation Council ( the Council)'      following preparation

of an environmental impact statement (EIS) and ultimate approval by the governor, pursuant to

the   Energy Facility        Site Locations Act (EFSLA), chapter 80. 50 RCW. However, Riverkeeper


claims that the Port violated SEPA by entering into ail agreement to lease the property to

Tesoro/ Savage for the project before the Council issued its EIS. Riverkeeper also claims that the

Port violated EFSLA regulations because the lease agreement with Tesoro/ Savage limits the

Port' s choice of reasonable alternatives available for the facility.

          We hold that the Port' s decision to enter into the lease agreement ( 1) was exempt from

SEPA' s EIS requirement under RCW 80. 50. 180, an EFSLA provision, because the lease

agreement involved the approval of the location of an energy facility; and ( 2) did not violate

WAC 197- 11- 070( 1),          a SEPA regulation, because the lease agreement does not limit the choice

of reasonable alternatives available to the Council and the governor for the facility during the site

certification process. Accordingly, we affirm the trial court' s order granting partial summary

judgment in favor of the Port


                                                            FACTS


          In late 2012, the Port solicited proposals from companies interested in developing a crude

oil terminal on its property. In early 2013, it selected Tesoro/ Savage as the most suitable



  The parties refer to the Council by the acronym EFSEC. We use the short form "the Council"
in    order   to   prevent   any   confusion with   the "   Energy Facility   Site Locations Act" ( EFSLA),   which


we reference throughout the opinion.


                                                                2
No. 46130 -7 -II



companies for such a project. The Port negotiated a lease agreement with Tesoro/ Savage and

then   approved   that   agreement at a public   meeting in   July 2013.   However, because of concerns


over the procedure used at that meeting, the Port voted a second time to approve the lease

agreement at another public meeting in October 2013.

         The lease agreement provides for a 10 -year lease ( extendable for two five-year terms at


Tesoro/ Savage' s option) following construction of the terminal facility. But before the

construction or lease periods begin, either party may terminate the agreement if any conditions

precedent are not satisfied. The primary condition precedent is that " all necessary licenses,

permits and approvals       have been   obtained   for the Permitted Use."   Clerk' s Papers ( CP) at 288.


This provision requires Tesoro/ Savage to acquire full regulatory approval for its operations

before it may begin construction or use of the land.2 Therefore, either the Port or Tesoro/ Savage

may terminate the agreement before the lease begins if Tesoro/ Savage cannot obtain full,

regulatory approval.


         The lease agreement describes the activities to be allowed on the land, which include the

loading and unloading of crude oil from rail lines, the storage of crude oil, and the loading of

crude oil onto marine vessels. The agreement also requires Tesoro/ Savage to maintain pollution


liability insurance with limits of $25 million.

         Before approving the lease agreement, the Port did not prepare an EIS and did not

formally assess whether one was required under SEPA. The chair of the Council advised the

Port that the Council would have sole responsibility for environmental review as part of the site



Z The other condition precedent involves preparation of a baseline environmental assessment to
determine the extent to which the land is already contaminated, which expressly benefits only
Tesoro/ Savage.
No. 46130 -7. -II



certification process under EFSLA. After the parties executed the lease agreement,


Tesoro/ Savage applied to the Council for site certification as required under EFSLA. The


Council determined that environmental review under SEPA was necessary and declared that it

would prepare an EIS for the project.


        Riverkeeper filed suit against the Port, asserting six claims relating to the Port' s

execution of the lease agreement. Claim five alleged that the Port " violated SEPA by approving

the lease for the petroleum products terminal before the completion of either a determination of

nonsignificance or an         EIS."    CP at 14. Claim six alleged that the Port " violated SEPA by taking

action —approval and execution of             the lease for   the   proposed .petroleum products   terminal —that



limits the choice of reasonable alternatives concerning the proposal before completion of either a

determination       of nonsignificance or an      EIS."   CP at 15.


           The trial court granted the Port' s summary judgment motion regarding these two claims.

The trial court ruled that RCW 80. 50. 180 exempts execution of the lease agreement from

SEPA' s EIS requirement and that execution of the lease agreement did not limit the reasonable

range of alternatives to be considered in the review of the project. The trial court subsequently

entered final judgment on claims five and six under CR 54( b).

           Rverkeeper appeals the trial court' s grant of partial summary judgment on claims five

and six.



                                                      ANALYSIS


A.         STANDARD OF REVIEW


           We review a trial court' s grant of summary judgment de novo, engaging in the same

 inquiry   as   the trial   court.   Int' l Longshore &   Warehouse Union, Local.] 9 v. City ofSeattle

 ILW(J), 176 Wn.            App.   512, 519, 309 P. 3d 654 ( 2013).     Summary judgment is proper if there are
                                                              C!
No. 46130 -7 -II



no issues of material fact and the moving party is entitled to judgment as a matter of law. CR

56( c).


B.        SCOPE OF EFSLA EXEMPTION


          Riverkeeper argues that SEPA applies to the Port' s proprietary decision to lease public

property to Tesoro/ Savage, and therefore that the Port violated SEPA by entering into the lease

agreement before completion of an EIS. We disagree because under RCW 80. 50. 180, the Port' s


decision to enter into the lease agreement. involved the approval or authorization of the location


of an energy facility and therefore is exempt from SEPA' s EIS requirement.

          1.       SEPA EIS Requirement


          In order to ensure that the government agencies consider the impact of their actions. on

the natural environment, SEPA requires agencies to submit an EIS before pursuing " major

actions   significantly affecting the quality     of   the   environment."   RCW 43. 21C. 030( 2)(   c); see also




Davidson Serles &         Assocs. v. City ofKirkland, 159 Wn. App. 616, 634, 246 P. 3d 822 ( 2011).

The EIS is a " detailed statement" describing

           i) the environmental impact of the proposed action;


           ii) any adverse environmental effects.which cannot be avoided should the proposal
          be implemented; .


               iii) alternatives to the proposed action;


          iv) the relationship between local short- term uses of the environment and the
          maintenance and enhancement of long- term productivity; and

               v) any irreversible and irretrievable commitments of resources which would be
          involved in the proposed action should it be implemented.

RCW 43. 21C. 030( 2)( c).




                                                             E
No. 46130 -7 -II



         An EIS serves to enhance agency decision making both by informing the agency directly

and by facilitating public engagement with the agency:

         The EIS process enables government agencies and interested citizens to review and
         comment on proposed government actions, including government approval of
         private   projects   and    their   environmental      effects....     An environmental impact
         statement is more than a disclosure document. It shall be used by agency officials
         in conjunction with other relevant materials and considerations to plan actions and
         make decisions.


WAC 197- 11- 400( 4).


         Because projects often involve multiple agencies, Department of Ecology regulations

provide for designation of a " lead agency" for purposes of preparing an EIS for any project.

WAC 197- 11- 050. The lead agency " shall be the agency with main responsibility for complying

with   SEPA'    s procedural requirements and shall         be the only agency      responsible   for: ( a) The


threshold determination [      of significance];    and ( b) Preparation and content of environmental


impact   statements."      WAC 197- 11- 050( 2).      This ensures that there will be only one EIS for each

project. See WAC 197- 11- 060( 3)( b).


         2.     EFSLA Certification Process


         EFSLA,     codified at chapter       80. 50 RCW, " governs the location, construction, and


operation conditions of       energy facilities in Washington."          Residents Opposed to Kittitas Turbines


v. State Energy Facility Site Evaluation Council, 165 Wn.2d 275, 284, 197 P. 3d 1153 ( 2008).

The term " energy     facility" is   defined to include     certain   types   of " energy plants."   RCW


80. 50. 020( 11), ( 12).   This definition includes any facility " which will have the capacity to

receive more than an average of fifty thousand barrels per day of crude or refined petroleum or
liquefied     petroleum gas which      has been   or will   be transported     over marine waters.     RCW


80. 50. 020( 12)( d). Tesoro/ Savage' s project falls within this definition.



                                                            0
No. 46130 -7 -II




           A primary focus of EFSLA is to establish a process for certifying construction of energy

facilities. Residents Opposed to Kittitas Turbines, 165 Wn.2d         at   284- 85. The. EFSLA created


the Council to administer the site certification process. RCW 80. 50. 030; Residents Opposed to


Kittitas Turbines, 165 Wn.2d at 285. The Council is composed of representatives from various


state agencies and also includes a representative of the county, city, or port district in which the

facility   is   proposed   to be located. RCW 80. 50. 030( 3)-( 6).


           Under EFSLA, the Council administers the process of certifying construction sites for

energy facilities. RCW 80. 50. 040, . 060( 1).       The Council receives, processes, and evaluates


applications for site certification under EFSLA and the regulations and guidelines it adopts.

RCW 80: 50. 040( 5)-( 11); Residents Opposed to Kittitas Turbines, 165 Wn.2d           at   285. The site


certification process begins when an applicant requests review of a proposed energy facility.

RCW 80. 50. 071( 1).        The applicant provides detailed information about the project and the


natural environment at the proposed site, WAC 463- 60- 010, and the Council determines whether

preparation of an EIS is necessary. WAC 463- 47- 060, 070. If needed, the Council prepares an

EIS .4 WAC 463- 47- 090( 1).


           The Council ultimately recommends that the governor approve or deny the application.

RCW 80. 50. 100( 1).        If the Council recommends approval, it has authority to impose conditions

on certification     to implement the    provisions of   EFSLA. RCW 80. 50. 100( 2). The governor


either approves the application, rejects the application, or directs the Council to reconsider




3 Port districts have a nonvoting representative on the Council for review of proposed energy
facilities on port property. RCW 80. 50. 030( 6).

4 If an EIS is required, the Council operates as the lead agency for EIS purposes if other agencies
are involved in an energy facility project. WAC 197- 11- 938( l).

                                                          7
No. 46130 -7 -II



certain aspects of    the   certification.     RCW 80. 50. 100( 3).    EFSLA places only procedural

limitations on the Council' s evaluation of an energy facility application and places no restrictions

at all on the governor' s decision. Friends ofthe Columbia Gorge, Inc. v. State Energy Facility

Site Evaluation Council, 178 Wn.2d 320, 334, 310 P. 3d 780 ( 2013).


          The legislature designed EFSLA certification to be the exclusive method for approving

the construction of energy facilities. RCW 80. 50. 110 provides that EFSLA supersedes

conflicting state laws and regulations and expressly preempts energy facility certification

decisions by other governmental entities. Residents Opposed to Kittitas Turbines, 165 Wn.2d at

285.    Site certification under EFSLA authorizes the applicant to construct and operate an energy


facility without obtaining a permit or certification from any other governmental entity. RCW

80. 50. 120( 3); Residents Opposed to Kittitas Turbines, 165 Wn.2d at 285.


          3.   Interpretation and Application of RCW 80. 50. 180


                a.    Statutory Language

          EFSLA expressly exempts certain actions involving energy facilities from SEPA' s EIS

requirement. RCW 80. 50. 180 provides that


          all proposals for legislation and other actions of any branch of government of this
          state, including state agencies, municipal and public corporations, and counties, to
          the extent the legislation or other action involved approves, authorizes, permits, or
          establishes procedures solely for approving, authorizing or permitting, the location,
          financing ' or construction of any energy facility subject to certification under
          chapter    80. 50 RCW,      shall   be   exempt   from the " detailed   statement" [   EIS] required

          by RCW 43. 21C.030.

 Emphasis      added.)   The issue here is whether the Port' s entry into a lease agreement involving

                                                                                                           or
the    construction of an    energy    facility    constitutes an action "   approving," " authorizing,"


 permitting" the location        of   that   facility.
No. 46130 -7 -II




                 b.   Principles of Statutory Interpretation

            Statutory interpretation is a matter of law that we review de novo. Jametsky v. Olsen,

179 Wn. 2d 756, 761, 317 P. 3d 1003 ( 2014).             The primary goal of statutory interpretation is to

determine and give effect to the legislature' s intent. Id. at 762. To determine legislative intent,

we first look to the plain language of the statute. Id. We consider the language of the provision

in question, the context of the statute in which the provision is found, and related statutes.

Protect the Peninsula' s Future v. Growth Mgmt. Hearings Bd., 185 Wn. App. 959, 969, 344 P. 3d

705 ( 2015).     When the statute at issue or a related statute includes an applicable statement of

purpose, the statute should be read in a manner consistent with that stated purpose. Id. at 969- 70.


            If the statutory language is unambiguous, we apply that statute' s plain meaning as an

expression of legislative intent without considering extrinsic sources. Jametsky, 179 Wn.2d at

762. We will not rewrite unambiguous statutory language or add language to an unambiguous

statute under the guise of interpretation. Protect the Peninsula' s Future, 185 Wn. App. at 970.

And    we " must not add words where            the legislature   has   chosen not   to include them." Rest. Dev.,


Inc.   v.   Cananwill, Inc., 150 Wn.2d 674, 682, 80 P. 3d 598 ( 2003).               Instead, we construe statutes


assuming that the legislature meant exactly what it said. In re Marriage. ofHerridge, 169 Wn.

App. 290, 297, 279 P. 3d 956 ( 2012).

                 c.   Ordinary Meaning Analysis

            RCW 80. 50. 180 expressly exempts from SEPA' s EIS requirement any action that

  approves, authorizes [ or] permits" the location of an energy facility. The ordinary meaning of

  approve" is " to express often formally agreement with and support of or commendation of as

meeting       a standard."     WEBSTER'   s   THIRD INTERNATIONAL DICTIONARY 106 ( 2002). " Authorize"


ordinarily      means "   to   endorse, empower,    justify, or   permit   by ...   some recognized or proper


                                                            G:
No. 46130 -7 -II



authority."     WEBSTER' s at 146. And " permit" ordinarily means " to consent to expressly or

formally [ or]   grant   leave for    or    the   privilege o£"    WEBSTER' S at 1683. Taken together, these


three terms broadly refer to any actions that formally grant a right or privilege necessary to move

a project forward.


        Here, the Port' s lease agreement formally grants Tesoro/ Savage the right to move

forward with a project to construct an energy facility at a particular location on Port property,

subject to certain conditions. Therefore, the RCW 80. 50. 180 exemption unambiguously applies

to the lease agreement.


        Riverkeeper argues that the phrase `.`approves, authorizes [ or] permits" in RCW 80. 50. 180


refers only to " regulatory" actions and not to " proprietary" actions. However, there is no basis in

the statutory language for making this distinction. RCW 80. 50. 180 potentially applies to " all ...

other actions," not      to "   all other   regulatory     actions."   The statute uses the broad phrase " approves,


authorizes [ or] permits," not " regulates."              Riverkeeper' s argument is inconsistent with the plain


statutory language, and adopting that argument would require us to add language to RCW

80. 50. 180.


                 d.   Context Analysis


        Riverkeeper argues that distinguishing between regulatory actions and proprietary actions

is supported by interpreting the statutory language in the context of other EFSLA and SEPA
provisions.




         Specifically, Riverkeeper asserts that ( 1) the fundamental purpose of EFSLA is to
centralize     the regulatory      process    for energy facilities, citing RCW 80. 50. 110( 2) ( EFSLA


preempts only the " regulation and certification" of energy facilities by other governmental

 entities) and   RCW 80. 50. 120( 3) (            stating that the issuance of a certificate shall be in lieu of any
                                                                  10
No. 46130 -7 -II



 permit, certificate or similar       document,"     which are   issued   pursuant   to regulatory authority); ( 2)



a narrow interpretation of RCW 80. 50. 180 is consistent with a core policy of SEPA,5 which

Riverkeeper claims is to ensure that decision makers like the Port have the information necessary

to make responsible environmental decisions before selling or leasing public property, see ILWU,

176 Wn. App. at 522 ( stating that the " fundamental idea of SEPA" is to " prevent government

agencies from approving projects and plans before the environmental impacts of doing so are

understood");     and ( 3) other sections of EFSLA' s and SEPA' s implementing regulations show

that agencies other than the Council can have SEPA responsibilities for energy facilities, citing

RCW 80. 50. 175( 4)       and   WAC 197- 11- 938( 1),     which was adopted for EFSLA purposes in WAC


463- 47- 020.


         However,    one of      the legislature'   s stated purposes   in enacting EFSLA     was "[   t] o avoid



costly duplication in the siting process and ensure that decisions are made timely and without

unnecessary     delay."    RCW 80. 50. 010( 5).       The Port argues that if proprietary actions relating to

energy facilities were not exempt, a governmental entity taking such actions would be required

to prepare an EIS in addition to the EIS that the Council is required to prepare. Riverkeeper

responds that it is not claiming that the Port should have to prepare its own EIS, but only that the

Port must wait until the Council completes its EIS before deciding whether to lease the property.

But, as in this case, the developer of an energy facility may require a written lease agreement

before proceeding with its application under EFSLA. In that situation, if leasing property was

not exempt under RCW 80. 50. 180, a governmental entity may have no choice but to prepare a

duplicative EIS before entering into the lease.



5
    Riverkeeper   notes   that   under   RCW 43. 21 C. 03 0( l), all Washington laws must be interpreted in
accordance with the policies set forth in SEPA.
                                                            11
No. 46130 -7 -II



        In addition, RCW 43. 21C. 030( 2)( c) and RCW 80. 50. 180 use almost identical language


regarding the    general scope of        those   statues.   Under RCW 43. 21C. 030( 2)(     c),   an EIS is required


for " proposals for legislation      and other major actions."         Similarly, RCW 80. 50. 180 applies to " alI

proposals    for legislation    and other actions."         Consideration' of these two statutes together


suggests that RCW 80. 50. 180 exempts all activities that might otherwise be subject to SEPA' s

EIS requirement.


        We hold that interpreting RCW 80. 50. 180 in the context of various EFSLA and SEPA

provisions    does   not   clarify the   plain   meaning     of "approve, authorize, [   or] permit" as used in that


statute. Riverkeeper' s arguments at best show that the legislature could have exempted

regulatory actions from the EIS requirement without conflicting with other statutory provisions.

But the legislature did not limit RCW 80. 50. 180 in that manner. We will not add language to the

statute based ori context arguments that cut both ways.


        Moreover, it is not clear that conditioning approval on the Council' s EIS review, rather

than EIS review by the Port, conflicts with the policies set forth in SEPA. As long as an EIS is

prepared and the review is completed, the policies underlying SEPA review appear to be

satisfied.   See RCW 43. 21C. 010, . 020.           And applying the RCW 80. 50. 180 exemption to all

actions, regulatory.or proprietary, is consistent with the legislature' s clear intent to centralize the

authorization process for energy facilities with the Council. Limiting the exemption to

regulatory actions potentially could undermine that purpose.

        We hold that based on the plain language of RCW 80. 50. 180, the Port' s decision to enter

into a lease agreement with Tesoro/ Savage relating to the construction of an energy facility was

exempt from SEPA' s EIS requirement.




                                                               12
No. 46130 -7 -II



B.      LIMITING THE CHOICE OF REASONABLE ALTERNATIVES


        Even if the Port is exempt from SEPA' s EIS requirement, Riverkeeper argues that the


Port violated WAC 197- 11- 070( 1) by entering into the lease agreement because the lease terms

limited the choice of the Port' s reasonable alternatives before completion of an EIS. We

disagree because the lease agreement did not limit the Council' s or the governor' s choice of


reasonable alternatives regarding the certification process.

             SEPA/ EFSLA Regulations


        WAC 197- 11- 070( 1) limits the actions of a governmental entity during the SEPA

process. That regulation provides,


        Until the responsible official issues a final determination of nonsignificance or final
        environmental impact statement, no action concerning the proposal shall be taken
        by a governmental agency that would:

         b) Limit the choice of reasonable alternatives.


WAC 197- 11- 786 defines " reasonable alternative" as


        an action that could feasibly attain or approximate a proposal' s objectives, but at a
        lower environmental cost or decreased level of environmental degradation.
        Reasonable alternatives may be those over which an agency with jurisdiction has
        authority to control impacts, either directly, or indirectly through requirement of
        mitigation measures.




See also King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 138 Wn.2d 161, 184-
85, 979 P. 2d 374 ( 1999).   The Council has expressly adopted these regulations for the EFSLA

process. WAC 463- 47- 020.


        In an EIS, an agency considers three categories of alternatives: no action, other

reasonable courses of action, and mitigation measures. WAC 197- 11- 792( 2)( b).




                                                   13
No. 46130 -7 -II



          2.     Applicability of WAC 197- 11- 070( 1)

          Initially, WAC 197- 11- 070( 1) states that a governmental agency cannot take an " action"

that   limits the   choice of reasonable alternatives.     Under WAC 197- 11- 704( 2)(       a)(   ii), leasing


property constitutes an " action" under SEPA. However, the Port' s lease agreement is contingent

on Tesoro/ Savage obtaining certification under EFSLA. Riverkeeper argues that despite this

contingency, entering into the lease        agreement constituted a        SEPA " action."   We agree.


          In Magnolia Neighborhood Planning Council v. City ofSeattle, the.city approved a plan

for   residential   development    on   property the city had     not yet obtained.   155 Wn. App. 305, 308,

230 P. 3d 190 ( 2010). Division One of this court held that this approval was a " project action"


under WAC 197- 11- 704 because it was " a decision on a specific construction project, located in

a   defined    geographic area."     155 Wn. App. at 314. The court also noted that the city' s approval

of the plan had a " binding effect" because once the city obtained the property, the city would be

bound to use the property based on the approved plan. Id. at 317.

          On the other hand, in ILWU the city entered into a memorandum of understanding that

contemplated the use of public funds for a sports arena. 176 Wn. App. at 514. Division One

held that the memorandum of understanding was not a " project action" under WAC 197- 11- 704

because the memorandum was merely a preliminary step to set forth an arena proposal that was

sufficiently definite to     allow   further study. Id.   at   520- 21.   Further, unlike in Magnolia, the


memorandum did not limit or control the city' s future decisions and therefore did not have a

binding effect. ILWU, 176 Wn. App. at 523.

          Here, the Port' s lease agreement is much more like the binding plan approval in

Magnolia than the nonbinding memorandum of understanding in ILWU. As in Magnolia, the

lease agreement represents a decision on a specific construction project in a specific location.

                                                          14
No. 46130 -7 -II




155 Wn. App. at 314. Further, upon certification by the Council the lease agreement essentially

will be binding on the Port. As a result, we hold that the Port' s entry into the lease agreement

with Tesoro/ Savage was an " action" under SEPA and therefore was subject to WAC 197- 11-

070( 1)( b).


         3.      Lease Agreement' s Effect on Reasonable Alternatives


         Riverkeeper argues that the lease agreement significantly limits the Port' s choices of

reasonable alternatives for Tesoro/ Savage' s energy facility. Specifically, Riverkeeper asserts

that the lease    agreement commits              the Port to ( 1) the location     of   the   facility, ( 2) the design of the

                                                 the site, ( 4) site closure   and reclamation requirements, ( 5)           the
facility, ( 3)   the   permitted uses of




dedication of berths to ships servicing the terminal, and ( 6) the amount of pollution liability

insurance Tesoro/ Savage must obtain. Riverkeeper also points out that the lease agreement

precludes the Port from leasing the property to any other tenant.6 In contrast, the Port argues that
the lease agreement does not limit the choice of reasonable alternatives available to the Council

or the governor in determining whether to approve the project.

          The deciding issue here is whether WAC 197- 11- 070( 1)( b) refers to the choice of

reasonable alternatives available to the agency conducting the EIS or whether it refers to the

choice of reasonable alternatives available to any governmental entity involved in a project.

WAC 197- 11- 070( 1)( b) is             silent   regarding this issue. It      states   only that   until "[   t] he responsible


official"     issues   an   EIS   or   determination     of nonsignificance, an         agency    cannot "[    1] imit the choice




6 The Port argues that the terms of the lease agreement allow it to make changes regarding the
 facility depending on the results of the EIS. However, as Riverkeeper points out, the only
meaningful contingency in the lease agreement is that Tesoro/ Savage obtain all necessary
certifications. Once certification occurs, the Port will be bound by the specific provisions in the
 lease agreement.


                                                                  15
No. 46130 -7 -II




of reasonable alternatives" without particularly specifying whose choice cannot be limited.

 Emphasis    added.)     Because this language arguably is subject to two reasonable interpretations,

WAC 197- 11- 070( 1)( b) is ambiguous. Jametsky, 179 Wn.2d at 762. We resolve ambiguity by

considering other indications of legislative intent, including principles of statutory construction,

legislative history, and relevant case law. Id. The same rules apply for regulations. See

Overlake Hosp. Ass' n v. Dep' t ofHealth, 170 Wn.2d 43, 52, 239 P. 3d 1095 ( 2010).

        No legislative history or cases directly address this issue. However, as a principle of

construction, we attempt construe laws relating to the same subject matter together. Residents

Opposed to Kittitas Turbines, 165 Wn.2d at 308- 09. To the extent two such laws conflict, we

give precedence to the more specific law. Id. at 309.


         Here, WAC 197- 11- 070( 1)( b) addresses the scope of environmental review generally.

EFSLA also addresses environmental review, but is tailored specifically to energy facilities. It is

designed to place all administrative responsibility for the certification of those facilities,

including the necessary environmental review,.on the Council, and places final decision making

authority on the governor. See Residents Opposed to Kittitas Turbines, 165 Wn.2d at 284- 85.

EFSLA preempts the regulation of certification of energy facilities by any other agency, RCW

80. 50. 110( 2),   and exempts other agencies from conducting an EIS regarding the location of

energy facilities. RCW 80. 50. 180. And it gives the Council and the governor broad discretion in

considering applications for the construction of energy facilities. Friends ofthe Columbia

Gorge, 178 Wn.2d at 334.


         This more specific statutory scheme controls our resolution of the ambiguity in WAC

 197- 11- 070( 1)( b).   We hold that the most reasonable interpretation of WAC 197- 11- 070( 1)( b) is

that when certification of energy facilities under EFSLA is involved, that regulation only
                                                     16
No. 46130 -7 -II




prohibits an agency from limiting the choice of reasonable alternatives available to the Council

and the governor. Because the legislature has placed all authority regarding the certification of

energy facilities with the Council and the governor, in this context whether a local agency' s

choices have been limited is irrelevant.


         Here, the Port' s lease agreement involves an energy facility. The Port' s lease agreement

is expressly conditioned on Tesoro/ Savage obtaining EFSLA certification. And because the

Council and the governor have broad discretion in considering applications for the construction

of   energy facilities, the terms   of   the lease             which might be binding on the Port but
                                                     agreement —




not on   the Council   or   the governor —   necessarily can have no effect on the certification decision.

The Council is free to deny or approve certification contingent on changing or supplementing the

lease terms. Under these circumstances, whether the Port has limited its own choices is

immaterial.


          We hold that the Port' s entry into the lease agreement with Tesoro/ Savage did not violate

WAC 197- 11- 070( 1)( b).


C. "       SNOWBALLING" EFFECT


          Riverkeeper also argues that the " snowballing" inertia generated by the lease agreement

effectively forecloses full consideration of alternative possibilities and constitutes a separate

violation of   WAC 197- 11- 070( l)( b).       We disagree.


          Riverkeeper' s argument is based on a line of cases beginning with King County v.

 Washington State Boundary Review Boardfor King County, 122 Wn.2d 648, 663- 64, 860 P. 2d
 1024 ( 1993).   In that case, the Supreme Court noted that


           elven if adverse environmental effects are discovered later, the inertia generated
          by the initial government decisions ( made without environmental impact
          statements) may carry the project forward regardless. When government decisions
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        may have such snowballing effect, decisionmakers need to be apprised of the
        environmental consequences before the project picks up momentum, not after.

122 Wn.2d     at   664;   see also   ILWU, 176 Wn.   App.   at   522 ("   The snowballing metaphor is powerful

because it embodies the fundamental ideal of SEPA: to prevent government agencies from


approving projects and plans before the environmental impacts of doing so are understood.").

        Based on this principle, an agency violates SEPA by shaping the details of a project

before completing an EIS, effectively turning administrative approval into a " yes or no" vote on

that project as detailed, rather than allowing for the development and consideration of

alternatives after the EIS is completed. See Lands Council v. Wash.. State Parks Recreation

Comm'   n,   176 Wn.      App.   787, 806- 07, 309 P. 3d 734 ( 2013).      Similarly, if the initial agency action

has a coercive effect on final approval such that it will likely limit the range of alternatives the

approving agency will consider, this may also violate SEPA. Cf.ILWU, 176 Wn. App. at 524-
25.   For instance, this can occur where the approving agency has expended large amounts of

resources to lay the groundwork for a particular project before approval and would be unable to

lay that groundwork again for an alternative project. Pub. Util. Dist. No. I of Clark County. v.

Pollution Control Hearings Bd., 137 Wn. App. 150, 162, 151 P. 3d 1067 ( 2007).

         Riverkeeper' s argument might have some merit if the Port was conducting the EIS and

making the certification decision. Here, however, the Council is solely responsible for

environmental review of the proposed energy facility. The Council likely will not be affected by

whatever inertia the Port has generated for the project. Further, the Council is not bound to

simply vote yes or no on the details of the project outlined in the lease agreement. The Council

has authority to impose conditions on site certification not contemplated in the lease agreement

in order to implement the provisions of EFSLA. RCW 80. 50. 100( 2).


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        Riverkeeper argues that the lease agreement necessarily generates inertia because the

Council will have to approve or deny the project " against the backdrop of a detailed lease that

promises millions of       dollars in   revenue   to   a   Washington   public   body." Reply Br, of Appellant at

25. However, the Council would face a similar situation even if the Port had not entered into a

formal lease agreement.


        Riverkeeper also notes that the lease agreement commits the Port to work diligently to

pursue all necessary licenses, permits, and approvals. Again, this provision could improperly

build momentum for the project if the Port was making the certification decision. But because

the Port   has only   a   nonvoting   representative on       the Council,   see   RCW 80. 50. 030( 6), this


provision does not limit the Council' s full consideration of reasonable alternatives. And it

certainly does not constrain the governor, who ultimately will decide whether to certify the

project.




           We hold that the Port' s entry into the lease agreement with Tesoro/ Savage did not violate

WAC 197- 11- 070( 1)( b) because of any " snowballing" effect.

           We affirm the trial court' s order granting partial summary judgment in favor of the Port.




                                                                                                          1
                                                                             MAYA, J. — —


We concur:




   JHANSON, C. J.



      IoL-4*       mJ,
  SUTTON, J.

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