The Seattle Parks Department plans to develop an eleven field lighted sports field complex at Magnuson Park (located on Sand Point). The Environmental Impact Statement (EIS) published in July 2002 estimated that construction would start in the spring of 2003. But as of this writing, the construction start date is now estimated to be spring 2004.
During 2003, Friends of Magnuson Park (FOMP) made two legal challenges against the Seattle Parks Department’s plan. The first challenge was in February 2003 and the second in August 2003. Both related to the adequacy of the EIS prepared on behalf of the Seattle Parks Department by private consulting firms. FOMP’s legal challenges took place before a deputy hearing examiner from Seattle’s "Office of Hearing Examiner," a nominally independent Seattle city department established to conduct hearings when someone disagrees with certain decisions made by a City agency.
In the narrowest legal sense, the first action was a partial win and the second, a loss. However, from a strategic perspective, these legal actions were exceptionally successful in achieving their aims of: (1) forcing the Parks Department to augment the EIS to cover important issues it initially left out and (2) establishing the necessary legal record / groundwork from which to launch future legal challenges. In fact, FOMP achieved its legal victory in the face of overwhelming odds—in the past decade, there has been only one other example of a successful EIS challenge before the hearing examiner.
FOMP’s actions to date are but the first in a list of possible legal challenges that FOMP and Eastside Friends of Lake Washington (EFoLW) can take to downsize or defeat the project. For example, the Seattle Parks Department needs various permits and variances to build the fields and lights. These permit and variance applications can be challenged on a variety of grounds through various legal and administrative venues.
To make sense of legal proceedings so far, one needs to understand a few things about the role of an EIS and how it may be challenged.
Washington State Environmental Policy Act (SEPA) mandates the preparation of an EIS for a public project like the Magnuson Park lighted fields. An EIS is simply a report that identifies possible environmental impacts (including effects on people as well as ecosystems) that may result from a particular project. It is prepared to help government decision makers (e.g., Parks Department, Seattle City Council, etc.) and the general public evaluate the impacts of decision(s) before them. Using information from an EIS, it is then up to decision makers to determine whether or not to proceed with a project as proposed, or to make changes to reduce likely impacts (mitigation).
The content of an EIS does not bind decision makers to any particular course of action. For instance, an EIS could specify a long list of adverse environmental impacts (as does the Magnuson Park EIS) and the decision makers could subsequently ignore, or deem these impacts "acceptable" for whatever reason.
The Office of Hearing Examiner is an "independent" city entity set up to "conduct fair and impartial administrative hearings" when someone or some organization disagrees with a decision made by a City agency—specifically whether or not City code provisions have been correctly applied. Hearing examiners are not judges per se, but they are licensed attorneys with experience in administrative hearings.
In Seattle, when a project is in the EIS stage, the first (and only) legal avenue available is to contest the EIS before the hearing examiner. In land use cases such as Magnuson Park, if one fails to exhaust possible administrative remedies before the hearing examiner, one may not have "standing" (right to file a lawsuit) in future legal venues like superior court. Also, before the hearing examiner, it is important to raise any issue that you may want to explore later in court. Thus, it was absolutely essential for FOMP to go before the hearing examiner and raise every possible objection if for no other reason than to create "placeholders" for future legal proceedings.
Independent, disinterested third parties did not request or prepare the EIS. The agency requesting and coordinating the EIS is the Seattle Parks Department, whose executives clearly want to build the lighted fields for a variety of reasons (including the creation of an ongoing revenue stream from field user fees). And, as is commonly the case, the EIS was prepared on behalf of the Parks Department by several private consulting firms under contract with the department. These same firms do other work for the city. It is a similar relationship as that between a private company and an external accounting firm hired by the company to conduct an "independent" audit—there are strong incentives for the auditor to deliver what the client wants to hear and to avoid "rocking the boat."
The hearing examiner has no discretion to approve or disapprove a project. The examiner can only decide if the EIS is "adequate".
To be deemed adequate, the environmental impact statement simply needs to call out the adverse impacts. SEPA law is very subjective—all the EIS has to do is present decision makers with a "reasonable thorough discussion" of a project’s probable environmental consequences so as to "allow officials to make a reasoned choice among alternatives." According to the Seattle Municipal Code, the hearing examiner is instructed to "accord substantial weight to the Department’s determination of adequacy"—meaning in this case that the Seattle Parks Department is assumed to be right unless one can clearly establish that their statements are "clearly erroneous" (a very high standard). Thus, an EIS can significantly underestimate environmental impacts and contain sloppy or substandard analyses yet still be deemed "adequate" by a hearing examiner. In other words, an EIS barely worthy of a "C-" grade still gets a pass.
It is a common misconception that if an EIS is found adequate in administrative or legal venues such as the hearing examiner, the associated project has no adverse environmental impacts. Another common misconception is that if the EIS is found adequate, the decision to move forward with the project has been "approved". It is up to decision makers for whom the EIS is written to determine if the impacts called out in the EIS are acceptable and to approve, modify, or cancel a project.
Not including FOMP’s two cases before the hearing examiner, eleven EIS adequacy determination cases have been held before the Seattle Hearing Examiner between 1992 and 2003 (the period for which records are available online). In all but one case, the hearing examiner upheld the EIS in question as "adequate". In other words, the odds were greater than a 10-to-1 against FOMP. Nevertheless, FOMP mounted a successful EIS adequacy challenge and forced the Parks Department to spend months producing a supplemental EIS document to address the effects of noise on Park wildlife, pushing out the project’s construction start date by six months or longer.
If a hearing examiner does find an EIS to be inadequate in some respect, the remedy available to the examiner is to order that a supplemental EIS (SEIS) be prepared to correct the deficiency. Once that is prepared, a plaintiff could challenge its adequacy and start the cycle anew. But, at best, these types of appeals before the hearing examiner are only good for one or two rounds. Once the hearing examiner declares the EIS (and any accompanying SEIS documents) adequate, those who sought to challenge the adequacy of the EIS/SEIS have exhausted their administrative remedies before the hearing examiner. While there are several other administrative and legal venues available to challenge the project, they all require waiting for an event signaling clear intent by the Parks Department to build the project, such as applying for various permit applications (which, as of this writing, hasn’t yet occurred),
In early 2003, FOMP challenged the adequacy of the EIS, claiming, among other things, that it did not adequately analyze noise impacts on wildlife. Given that the EIS did not include any analysis of this topic, the hearing Examiner ruled on Feb. 26, 2003 in FOMP's favor, compelling Parks to amend the EIS by producing a final "Supplemental EIS" (SEIS) document. The Parks department published the SEIS as ordered on May 16, 2003, approximately three months later.
FOMP also made several other EIS challenges that were denied by the hearing examiner, including the following:
Failure to consider an off-site alternative or fields without lights or synthetic turf. Rather than stating a project goal of creating additional lighted athletic field capacity citywide, the Parks Department narrowly defined the projects purpose as constructing lighted athletic fields at Magnuson Park. FOMP argued that under SEPA, off-site alternatives must be considered for public projects, regardless of a narrowly defined "project purpose." While the hearing examiner admitted "at some point along a continuum of planning, an agency may cross over from project planning that is informed by citywide considerations… into improperly narrowing its project objective and avoiding the consideration of reasonable alternatives demanded by SEPA", the examiner did not concluded that "the line was improperly crossed in this case."
Failure to adequately analyze the impacts of the lighting and noise on surrounding communities. The EIS did include several significantly toned down statements of light impacts and does contain some discussion of noise impacts. Expert witnesses provided compelling testimony explaining how the EIS vastly underplays the impacts of the proposed field lighting, failing even to provide decision makers with an illustration—either through simulation or real photography—demonstrating the proposal and its impacts. Expert witnesses also showed how the noise studies done as part of the EIS were sloppy and did not contain even the most basic types of analyses. However, with respect to lighting, the hearing examiner concluded, "The EIS may not paint as vivid a picture as the simulation developed by Mr. Benya [FOMP’s expert witness], but the impacts are adequately disclosed for the decision-makers." With respect to noise, the hearing examiner said "The EIS’s choice of measurements, assumptions, and methods of prediction were not shown to be clearly erroneous."
Following the preparation of an SEIS by the Parks Department as directed by the Hearing Examiner, FOMP challenged the May 2003 SEIS as inadequate in its analysis of the impacts of noise associated with the project on wildlife. However, the hearing examiner affirmed the adequacy of the SEIS "despite some of the problems with the document that have been identified by the appellant [FOMP]."
An overview of the State Environmental Policy Act (SEPA) can be found at ww.ecy.wa.gov/programs/sea/sepa/e-review.html.
The Web site for the Seattle Hearing Examiner is www.cityofseattle.net/examiner/. An overview of the examiner's role can be found at this site.
The full text of City of Seattle Hearing Examiner decisions, including those related to FOMP’s appeals, can be found via the search form at clerk.ci.seattle.wa.us/~public/HEAR1.htm. The Feb. 26, 2003 ruling is file number W-02-003 and the Aug. 28, 2003 ruling is file number W-03-006. To locate the rulings, type the file number in the "Hearing Examiner File No" field on the search form. Links to these rulings are also available in Eastside Friends of Lake Washington's Document Library, at the Hearing Examiner page.
[Page last updated 12/8/03]