Arbitrary and capricious: Rule of law binds agencies

The Olympian | Rob McKenna | November 17, 2017

After five years and thousands of hours of public testimony, it took a Cowlitz County judge just five seconds to say what many of us have long suspected: some state regulators are out of control, and important parts of the state regulatory process are now tools of activist groups.

Cowlitz County Superior Court Judge Stephen Warning made his comments in response to a dispute over access to the Columbia River for the Millennium Bulk Terminals project. They suggest a level of frustration not often seen from the bench. The Millennium case is a striking example of how agency regulatory processes can be appropriated by activists seeking to deny or block projects that don’t align with their political agendas.

Judge Warning, though, saw through that strategy. His October ruling is based on the principle that the rule of law must be applied evenly, regardless of politics. Regulatory agencies must not exceed the authority granted to them by our elected representatives in the Legislature.

The dispute before Judge Warning involves a lease from our state Department of Natural Resources currently held by Northwest Alloys, and its sublease with Millennium Bulk Terminals. Millennium’s proposed coal export terminal in Longview, Washington, has been under local and state regulatory review for a record five years, and counting. At issue is whether Northwest Alloys and Millennium can build a dock under the lease.

Read the full piece here.