HomeMy WebLinkAboutCOB Response to CENSE Motion for Reconsideration, 3.6.20
CITY OF BELLEVUE’S RESPONSE TO MOTION FOR
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CITY OF BELLEVUE
OFFICE OF THE CITY ATTORNEY
450 110th Ave NE, PO Box 90012
Bellevue, WA 98004
Tel: 425.452.6829 | Fax: 425.452.7256
Before Hearing Examiner
Phil Olbrechts
BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON
IN AND FOR THE STATE OF WASHINGTON
In the Matter of Puget Sound Energy,
Inc. (PSE) –
Energize Eastside Conditional Use
Permit File
Permit No. LUA 18-000055, CU-H, SME
CITY OF BELLEVUE’S RESPONSE TO
MOTION FOR RECONSIDERATION
BY CENSE
I. INTRODUCTION
The City of Bellevue (Bellevue) respectfully submits this Response to the Motion
for Reconsideration filed by Coalition of Eastside Neighbors for Sensible Energy
(CENSE). Bellevue is the lead agency under the State Environmental Policy Act
(SEPA), Chapter 43.21C RCW, for the environmental review undertaken by the
Partner Cities of Bellevue, Renton, Newcastle, Redmond, and Kirkland in connection
with Puget Sound Energy, Inc.’s (PSE’s) Energize Eastside project (“Energize
Eastside” or “the Project”).
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CITY OF BELLEVUE
OFFICE OF THE CITY ATTORNEY
450 110th Ave NE, PO Box 90012
Bellevue, WA 98004
Tel: 425.452.6829 | Fax: 425.452.7256
CENSE’s Motion claims that the environmental review for Energize Eastside is
somehow inadequate, invalid, or requires a supplemental Environmental Impact
Statement (SEIS) under WAC 197-11-600(3)(b)(ii). CENSE’s Motion is based entirely
on CENSE’s belief that PSE has abandoned portions of the Project, or that PSE’s
phased construction and permitting schedule for the Project violates SEPA. None of
these arguments are new, and CENSE has already filed a lawsuit against Bellevue,
CENSE v. City of Bellevue, 19-2-33800-8 SEA, that raises the same EIS adequacy
arguments that CENSE now raises in Renton.1
The Hearing Examiner’s February 6, 2020 Revised Decision (HEX Decision)
recognized that phased construction and permitting is quite common for a linear
infrastructure project like Energize Eastside. In fact, the FEIS disclosed and evaluated
the phased construction and permitting plan of which CENSE now complains.
Nevertheless, CENSE’s Motion ignores the content of the FEIS as well as the more
recent environmental record developed by Renton during the local land use process.
Tellingly, CENSE has not and cannot point to any evidence of probable significant
adverse environmental impacts that were not covered by and memorialized in the
robust environmental review undertaken by the Partner Cities over many years.
Ultimately, the Superior Court is the appropriate forum for CENSE to raise its EIS
adequacy argument, but even taking that argument at face value, CENSE’s Motion has
no support in the record and should be denied.
1 A true and correct copy of CENSE’s December 23, 2019 lawsuit, without attachments, is
attached hereto as Exhibit A, and CENSE’s EIS adequacy challenge is included at pages 16-
18. Bellevue respectfully requests that the Hearing Examiner take judicial notice of this lawsuit.
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CITY OF BELLEVUE
OFFICE OF THE CITY ATTORNEY
450 110th Ave NE, PO Box 90012
Bellevue, WA 98004
Tel: 425.452.6829 | Fax: 425.452.7256
II. STATEMENT OF RELEVANT FACTS
A. The Energize Eastside Project
PSE’s Energize Eastside project proposes the construction of a new substation
in Bellevue and the upgrade of sixteen (16) miles of two existing 115 kV transmission
lines with 230 kV lines from Redmond to Renton. FEIS at I & 1-1 (Ex. 18 to Staff
Report). PSE has chosen to use the existing utility corridor, which has supported the
transmission line for decades, and thus avoids establishing a new corridor for the
Project. Id. at 2-11, 2-5 to 2-33. As Energize Eastside is a linear infrastructure project
that stretches across multiple jurisdictions with local permitting authority, PSE is
applying for permits to construct the Project in phases. Id. at 1-12, 2-37.
Bellevue has already approved conditional use and critical areas land use
permit applications that would authorize construction of the Richards Creek substation
and upgrade 3.3 miles of existing transmission lines in south Bellevue. Id. at 1-12 & 2-
27. CENSE and its members challenged Bellevue’s land use recommendations and
Hearing Examiner decision throughout the land use process, appealed these
approvals to the Bellevue City Council, and then filed a lawsuit after the City Council
denied their appeals. Ex. A (CENSE v. City of Bellevue, 19-2-33800-8 SEA).
B. The Environmental Review Process
Bellevue, in cooperation with Renton, Newcastle, Redmond, and Kirkland,
conducted environmental review of the Energize Eastside project over the course of
several years. FEIS at 1-1 to 1-33 (Ex. 18 to Staff Report). The culmination of this
environmental review was issuance of the March 1, 2018 FEIS. Id. at 1-7, Figure 1-2.
The FEIS built upon the previous Phase 1 Draft EIS and Phase 2 Draft EIS, released in
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CITY OF BELLEVUE
OFFICE OF THE CITY ATTORNEY
450 110th Ave NE, PO Box 90012
Bellevue, WA 98004
Tel: 425.452.6829 | Fax: 425.452.7256
January 2016 and May 2017, respectively. Id. at I, 1-1, 1-7 to 1-8. Each phase of
environmental review included extensive public participation and comment, including
public comment submitted by CENSE, its members, its experts, and its attorney for
each EIS phase. Id. at 6-1 to 6-19, Appendices J-1, J-2 & K.
The Phase 2 Draft EIS and FEIS considered the impacts on the environment of
Energize Eastside throughout each jurisdiction. Id. at 1-1 to 2-45, 4.0-1 to 5.11-1, 7-1
to 8-4. This included a comprehensive environmental assessment of potential impacts
and cumulative impacts associated with the construction and operation of PSE's
proposed alignment in the existing utility corridor. Id. The FEIS concluded that
construction of PSE’s upgraded transmission line in the existing utility corridor limited
environmental impacts. Id. at 2-11 to 2-12, 2-21 to 2-33, 2-45. The FEIS also
explained why the Project would not result in any significant unavoidable adverse
environmental impacts in the City of Renton. Id. at 4.1-20 to 4.1-21, 4.2-44 to 4.2-49,
4.3-20, 4.4-22, 4.5-7, 4.6-16 to 4.6-17, 4.7-15 to 4.7-16, 4.8-16, 4.9-36, 4.11-13, 8-1 to
8-4.
Importantly, the FEIS disclosed and considered PSE’s phased construction and
permitting schedule for the Project:
Construction Phasing and Schedule. Construction of the transmission lines
would typically take approximately 12 to 18 months (over two construction
phases) and would be constructed concurrently with construction of the
Richards Creek substation. Under certain conditions, construction can be
accelerated or slowed down depending on the number of crews working at the
same time. The project is expected to be built in phases, with the south end
(from the Talbot Hill substation to the proposed Richards Creek substation)
being the first phase, followed by the north phase as soon as design,
permitting, and energization of the south phase would allow.
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CITY OF BELLEVUE
OFFICE OF THE CITY ATTORNEY
450 110th Ave NE, PO Box 90012
Bellevue, WA 98004
Tel: 425.452.6829 | Fax: 425.452.7256
Id. at 2-37; see also id. at 1-12. The FEIS then explained the utility and benefit of
PSE’s phased construction and permitting schedule:
The project needs to be built in two construction phases to keep the Lakeside
substation energized, thereby keeping the transmission system on-line to serve
customers. During the construction of the south phase, the Lakeside substation
will be served from the north and likewise, once the south phase is complete, it
will be used to serve the Eastside while the north half is constructed.
Id. Thus, the FEIS not only disclosed and evaluated PSE’s phased schedule, but it
also explained to the public and future decisionmakers that this schedule allows PSE
to keep the transmission line on-line to serve customers during construction while the
northern phase, located in north Bellevue and Redmond, is permitted and constructed.
Id.
The Partner Cities’ cooperation and environmental review did not end with
issuance of the FEIS. For example, in connection with the current land use review
before the Hearing Examiner, Renton prepared a detailed EIS Consistency Analysis /
EIS Addendum (EIS Addendum). Exs. 1-2 to HEX Decision (ERC Report and EIS
Addendum). Renton’s Environmental Review Committee and Bellevue’s
Environmental Coordinator, Liz Stead, reviewed the EIS Addendum prior to issuance,
and Ms. Stead agreed with Renton’s conclusion that the EIS Addendum provided
additional environmental information and analysis but did not change the analysis of
significant impacts and alternatives included in the Energize Eastside FEIS. See
December 12, 2019 email from Liz Stead to Jill Ding (included in Permit File No. LUA
18-000055). Renton published notice of availability of the EIS Addendum on
December 13, 2019, and Bellevue posted the EIS Addendum on the Energize Eastside
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CITY OF BELLEVUE
OFFICE OF THE CITY ATTORNEY
450 110th Ave NE, PO Box 90012
Bellevue, WA 98004
Tel: 425.452.6829 | Fax: 425.452.7256
project page that Bellevue, as the lead agency, maintains and updates. Exs. 1-2 to
HEX Decision (ERC Report and EIS Addendum).2
C. The January 8, 2020 Public Hearing
Ms. Stead also appeared and testified at the January 8, 2020 public hearing in
Renton. HEX Decision at 31-32; 1/8/20 Public Hearing Minutes at 12.3 During her
testimony, Ms. Stead confirmed that the environmental review undertaken by the
Partner Cities considered potential and cumulative impacts associated with
construction and operation of Energize Eastside as well as the independent utility of
the south segment of the Project. Id. She also confirmed that Bellevue does not
provide an administrative appeal process to challenge EIS adequacy and that CENSE
had already filed a lawsuit against Bellevue challenging EIS adequacy in Superior
Court. Id.
Following Ms. Stead’s testimony, Jill Ding, the assigned Renton Senior Planner,
explained that the EIS Addendum analyzes project impacts in Renton for consistency
with the EIS and that undergrounding the transmission line was not considered a viable
option based on associated costs to the City. Id. During rebuttal, PSE confirmed that
CENSE’s belief that PSE had abandoned the northern portion of Energize Eastside is
2 See also https://www.energizeeastsideeis.org/
3 Although the Hearing Examiner Decision identifies Ms. Stead as Carol Helland, Ms. Stead is
Bellevue’s current Environmental Coordinator and Ms. Helland is Bellevue’s former
Environmental Coordinator. The City of Renton’s Request for Limited Reconsideration seeks to
correct this minor error.
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CITY OF BELLEVUE
OFFICE OF THE CITY ATTORNEY
450 110th Ave NE, PO Box 90012
Bellevue, WA 98004
Tel: 425.452.6829 | Fax: 425.452.7256
not supported by the record and that PSE needs to build the Project in its entirety to
comply with federal reliability criteria. Id.4
III. RESPONSE
SEPA requires agencies to integrate environmental concerns into their
decision-making processes and study and explain the environmental consequences
before pursuing actions. Stempel v. Dep't of Water Res., 82 Wn.2d 109, 117-118, 508
P.2d 166, 171 (1973). SEPA contemplates circumstances such as Energize Eastside
where multiple agencies have permitting authority over a single project. See WAC
197-11-922 to -948; and WAC 197-11-055(5). In such a situation, the lead agency
prepares the EIS for the proposed project, and other agencies with jurisdiction over
the project use the EIS prepared by the lead agency to inform their permitting
decisions. WAC 197-11-050(2)(b); WAC 197-11-600(3)(c). Supplemental
environmental review is not required when probable significant adverse environmental
impacts are covered by the range of alternatives and impacts analyzed in the existing
environmental documents. WAC 197-11-600(3)(b)(ii).
A. CENSE concedes that the Hearing Examiner lacks jurisdiction to
adjudicate an EIS adequacy challenge.
The Hearing Examiner, at page 31 of the HEX Decision, correctly identifies
CENSE’s argument as a challenge to the adequacy of the FEIS:
Several project opponents argued at hearing that the FEIS is inadequate
because PSE is only applying for a portion of the proposal as described in the
FEIS. Specifically, project opponents assert that PSE has only applied for the
southern portion of the transmission corridor that links the Talbot substation to
the proposed Richards Creek substation as opposed to the transmission line
4 CENSE’s Motion twice states that the northern segment of the Project would “only” provide
redundancy, implying that it is unimportant. CENSE Motion at 5, 8. In this context, however,
redundant does not mean superfluous. To the contrary, in an electric system, redundancy
provides a very important tool to protect system reliability. FEIS at 6-18 (Ex. 18 to Staff Report);
Phase 1 Draft EIS at 2-37, 16-25 (Ex. 17 to Staff Report).
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CITY OF BELLEVUE
OFFICE OF THE CITY ATTORNEY
450 110th Ave NE, PO Box 90012
Bellevue, WA 98004
Tel: 425.452.6829 | Fax: 425.452.7256
assessed in the FEIS which ran from the Talbot station all the way to the
Sammamish substation. The hearing examiner has no jurisdiction to address the
adequacy of the EIS. Further, there is no reasonable basis to conclude that PSE
will not follow through on constructing the entire proposal.
CENSE’s Motion concedes that the Hearing Examiner has no jurisdiction to adjudicate
the adequacy of the FEIS, but CENSE nonetheless asks the Hearing Examiner to
order an SEIS because CENSE believes the EIS is inadequate under SEPA. CENSE
Motion at 8-9. The Hearing Examiner should not entertain this request because the
powers of the Hearing Examiner are strictly limited to those granted by the authorizing
authority. Chausee v. Snohomish County, 38 Wn. App. 630, 636-639, 689 P.2d 1084
(1984), quoting Messer v. Board of Adjustment, 19 Wn. App. 780, 787, 578 P.2d 50
(1978) (“The scope and nature of an administrative appeal or review must be
determined by the provisions of the statutes and ordinances which authorize them.”)
Furthermore, CENSE’s argument obfuscates the important difference between
consideration of environmental impacts and adjudication of the adequacy of an EIS.
CENSE cites WAC 197-11-535 for the proposition that environmental impacts should
be considered in public hearings. CENSE Motion at 9. This was done in Renton’s
public hearing, as CENSE, its members, and the public had ample opportunity to
identify impacts to the environment that they believed would result from the Project.
Considering the impacts of a proposal, however, can be done without making
the legal determination of sufficiency of an EIS. This is clear from the introductory
portion of WAC 197-11-680(3)(a)(iv), which provides that, “Agencies may provide for
an administrative appeal of determinations relating to SEPA in their agency SEPA
procedures.” (Emphasis added.) CENSE concedes Renton has not provided this
process, stating “there is no administrative appeal of EIS adequacy in Renton.” CENSE
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CITY OF BELLEVUE
OFFICE OF THE CITY ATTORNEY
450 110th Ave NE, PO Box 90012
Bellevue, WA 98004
Tel: 425.452.6829 | Fax: 425.452.7256
Motion at 9. Absent the authority to determine whether the FEIS is adequate in the first
place, the Hearing Examiner likewise cannot determine whether an SEIS is necessary.
It bears repeating that CENSE has already filed a lawsuit against Bellevue—the
lead agency—challenging EIS adequacy, and Bellevue, like Renton, does not provide
an administrative appeal of FEIS adequacy. As the Hearing Examiner correctly held,
“approval of an FEIS is a separate decision made by the SEPA Responsible Official”
and “[i]n the absence of available administrative appeal, the only forum for appealing
the adequacy of the FEIS is judicial.” HEX Decision at 31 (citing WAC 197-11-460).
There is no credible argument that CENSE’s pending lawsuit against Bellevue in
Superior Court is not an adequate forum for CENSE to challenge the adequacy of the
FEIS. While CENSE is certainly entitled to recycle the arguments it has raised in its
lawsuit against Bellevue as public comment in Renton, nothing in SEPA or the SEPA
Rules allows an administrative challenge to EIS adequacy in Renton when the Hearing
Examiner has no jurisdiction to consider that challenge.
B. The Hearing Examiner concluded correctly that CENSE’s complaints
regarding the environmental review undertaken by the Partner Cities
have no merit.
As the FEIS makes plain, Energize Eastside is a linear infrastructure project that
is within the jurisdiction of multiple permitting agencies who will consider various permit
applications subject to different land use processes. FEIS at 1-12, 1-1 to 1-33 (Ex. 18
to Staff Report). The comprehensive and exhaustive environmental analysis
undertaken for Energize Eastside did not avoid discussion of impacts in Renton, or
avoid discussion of cumulative impacts, or avoid consideration of impacts that are
required to be evaluated in a single environmental document. Id. at 1-1 to 2-45, 4.0-1
to 5.11-1, 7-1 to 8-4.
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CITY OF BELLEVUE
OFFICE OF THE CITY ATTORNEY
450 110th Ave NE, PO Box 90012
Bellevue, WA 98004
Tel: 425.452.6829 | Fax: 425.452.7256
As the Hearing Examiner correctly held, PSE’s phased construction and
permitting schedule does not change the Project, or the portion of the Project in
Renton, “such that it no longer bears any material resemblance to what was assessed
in the FEIS.” HEX Decision at 31. This is particularly true given that the FEIS disclosed
the phased schedule, informed the public and decisionmakers that the southern portion
of the larger Project can function independently, and explained that the new
transmission line will be developed in phases in order to keep the transmission system
on-line to serve customers during construction. Id. at 2-37; see also id. at 1-12. There
is no indication in the record before the Hearing Examiner that the thorough and
comprehensive assessment of environmental impacts undertaken by the Partner Cities
is somehow invalidated by PSE’s phased construction and permitting schedule. See
HEX Decision at 31-32.
Finally, the environmental review for Energize Eastside is the antithesis of any
alleged failure to study, failure to disclose, or failure to comply with SEPA as CENSE
argues. The design, configuration, components, and environmental impacts resulting
from construction of the southern portion of the Energize Eastside project were all
disclosed and analyzed during the environmental review process and have, most
recently, been refined by Renton’s EIS Addendum. FEIS at 1-1 to 2-45, 4.0-1 to 5.11-1,
7-1 to 8-4; Exs. 1-2 to HEX Decision (ERC Report and EIS Addendum). CENSE’s
Motion completely ignores all of this thorough and thoughtful environmental analysis
and instead relies on an excerpted sentence from Bellevue’s 1500-page Staff Report to
support its request for reconsideration in Renton. Therefore, CENSE has completely
failed to show any probable significant adverse environmental impacts that were not
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CITY OF BELLEVUE
OFFICE OF THE CITY ATTORNEY
450 110th Ave NE, PO Box 90012
Bellevue, WA 98004
Tel: 425.452.6829 | Fax: 425.452.7256
covered by the existing environmental documents, and its Motion is neither credible nor
supported by the environmental record.
IV. CONCLUSION
For the foregoing reasons, Bellevue respectfully requests that the Hearing
Examiner deny CENSE’s Motion for Reconsideration.
DATED this 6th day of March, 2020, at Bellevue, WA.
CITY OF BELLEVUE
OFFICE OF THE CITY ATTORNEY
Kathryn L. Gerla, City Attorney
/s/ Matt McFarland
Matthew B. McFarland, WSBA #51675
Assistant City Attorney
Attorney for City of Bellevue
MMcfarland@bellevuewa.gov
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CITY OF BELLEVUE
OFFICE OF THE CITY ATTORNEY
450 110th Ave NE, PO Box 90012
Bellevue, WA 98004
Tel: 425.452.6829 | Fax: 425.452.7256
CERTIFICATE OF SERVICE
The undersigned hereby certifies under penalty of perjury of the laws of the
State of Washington that he/she caused to be served in the manner indicated below a
true and correct copy of the CITY OF BELLEVUE’S RESPONSE TO MOTION FOR
RECONSIDERATION BY CENSE on the City of Renton and the parties listed below:
To:
City of Renton Attorney for CENSE
Jason A. Seth, MMC, City Clerk J. Richard Aramburu
Jill Ding, Senior Planner Aramburu & Eustis, LLP
1055 South Grady Way 720 Third Avenue, Suite 2112
Renton, WA 98057 Seattle, WA 98104
jseth@rentonwa.gov rick@aramburu-eustis.com
jding@rentonwa.gov
Attorney for PSE
Erin L. Anderson
Van Ness Feldman LLP
719 Second Ave, STE 1150
Seattle, WA 98104
eanderson@vnf.com
Attorney for PSE
Sara A. Leverette
Van Ness Feldman LLP
719 Second Ave, STE 1150
Seattle, WA 98104
sleverette@vnf.com
By: ☐Mail ☒Email
DATED this 6th day of March, 2020, at Bellevue, WA.
/s/ Matt McFarland
Matt McFarland
Assistant City Attorney
EXHIBIT A