"The Magnuson Effect"
By Matt Gagne

Former Washington Sen. Warren Magnuson’s legacy continues to protect Puget Sound from oil spills.

Bald eagles soar above the tidal flats south of Cherry Point just west of Ferndale, looking for food as the tide rolls out leaving a muddy plain stretching several miles wide. Houses line the shore. Harlequin ducks and great blue herons wade around the receding water in search of their own meal. Shore crabs, some no bigger than a quarter, scurry under rocks.

Over the trees to the north of the tidal flats, a constant reminder of a threat looms in a cloud of exhaust. Cherry Point, a haven for humans and wildlife, is also home to two of Puget Sound’s five oil refineries. Those refineries receive more than half of their crude oil by ship from Alaska, where 17 years ago the tanker Exxon Valdez spilled 11 million gallons of crude oil into Prince William Sound with devastating environmental consequences. With more than 600 oil tankers navigating Puget Sound waters each year, the threat of an oil spill even more devastating than the 1989 disaster overshadows the estuary.

"Puget Sound is essentially one large nursery," said Paul Dinnel, a marine biology researcher at the Shannon Point Marine Center in Anacortes. "But its resources are already taxed to the limit."

The Exxon Valdez accident was comparatively small ranking as the 35th largest oil spill in history. The five largest spills dumped more than 80 million gallons of oil each, but most were farther out at sea. But in 1989, vivid images of oil-covered beaches, mile-long oil slicks and devastated wildlife from Prince William Sound bombarded the American public.

The Prince William Sound tragedy heightened public awareness of the danger oil spills pose, arming politicians with rhetoric to pass regulations lessening the possibility of another spill. Legislatures passed laws governing oil tanker safety; Alaska now has stringent regulations for oil tankers entering state waters.

But these regulations came at the cost of the once pristine environment of Prince William Sound, which still struggles to recover.

More than a decade before the Exxon Valdez spill, Washington Sen. Warren Magnuson had the foresight to protect his own state from a similar fate. In 1977, Magnuson, a Democrat, pushed through Congress an amendment to the

Marine Mammal Protection Act of 1972. The amendment outlawed government agencies from issuing permits that would approve any enlargement of oil refinery ports in Puget Sound unless the energy needs of Washington state warranted an expansion. The intention of the bill was to limit the amount of oil tanker traffic in the sound.

"He was pretty pointed about what his amendment would do," said Wendy Steffensen, the North Sound baykeeper with RE Sources. The Baykeeper program is a national alliance of advocates and educators, each monitoring a specific body of water.

All laws governing oil tankers deal with safety and spill prevention, but the Magnuson amendment is the only one that specifically limits tanker traffic, Steffensen said. While the amendment does not actually cap tanker traffic, it stands in the way of drastic increases, she said.

Magnuson said increased tanker traffic in Puget Sound was bad policy and fought for strong legislation. Within five years, the government passed regulations limiting the size of oil tankers in the sound. Magnuson secured a Coast Guard rule limiting the size of oil tankers in Puget Sound to 125,000 dead-weight tons and 35 million gallons of crude oil.

Smaller spills still occur in Puget Sound, although reports from the Washington State Department of Ecology say incidents have decreased since the Exxon Valdez accident, and spills the size of the Exxon Valdez or larger have been avoided. But the threat of a major oil spill remains. Despite the reduced number of accidents, the Magnuson amendment is now under attack by oil corporations and a few politicians.

"(The Magnuson amendment is) a provision which unduly restricts our ability to get states on the West Coast the petroleum supplies they need," said Sen. Ted Stevens, R-Alaska, as he introduced a bill to overturn the 28-year-old law last November.

Stevens’ provision was the second attempt to overturn the Magnuson amendment last year, the first originating in the House of Representatives as an addition to the Gasoline for America’s Security Act. Maria Cantwell, the junior Democratic senator from Washington, threatened to filibuster any attempt to overturn the Magnuson amendment if it came to the Senate. Cantwell’s effort, coupled with bipartisan opposition, stripped the addition to the House bill. Stevens’ bill died in committee.

BP Cherry Point, Puget Sound’s largest refinery, decided to expand its port, putting the law into question even before politicians were taking their shots at the amendment. In 1996, the U.S. Army Corps of Engineers issued a permit allowing the construction of an additional pier at the Cherry Point dock based solely on studies BP completed. Typically, such a project would warrant an environmental impact statement, but the corps decided the study was unnecessary because BP officials said the dock would alleviate oil tanker traffic jams.

"The rationale BP gave was that this new dock would reduce the possibility of an oil spill, so why study it?" said Fred Felleman, Northwest director of Ocean Advocates, a nonprofit environmental group.

Ocean Advocates, along with nonprofits Fuel Safe Washington, North Cascades Audubon Society and RE Sources, sued the corps, contending the permit issued to BP violated the Magnuson amendment. BP won the case in District Court, arguing that the amendment only specifically referred to expanding docks handling crude oil. Engineers designed the new dock to handle only refined products.

The plaintiffs appealed, arguing that the addition did increase the handling capacity for crude oil — the original dock handled both crude and refined product, but with the new pier it would handle only crude oil. The 9th U.S. Court of Appeals overturned the District Court’s decision, deciding that the corps did not thoroughly evaluate the new dock’s impact on increased tanker traffic and the refinery’s ability to handle crude oil. The court ordered the corps to complete an environmental impact statement, which would determine whether the pier addition at Cherry Point was a violation of the Magnuson amendment and if so what limitations would need to be imposed on its use.

BP finished the dock in 2001 and it is in full use with no restrictions despite the court’s recommendation of a temporary injunction to keep traffic at pre-2000 levels until the completion of an environmental impact statement.

"They shouldn’t be able to get the benefit of the spoils if they built it illegally," Felleman said.

Bill Kidd, a BP spokesman, said the pier addition is legal and does not violate the Magnuson amendment. But he also questioned the law.

"We’re not hiding anything," Kidd said. "We’re building a dock here. It points to the nebulous nature of legislation when two judges came to opposite conclusions. That is not a sign of well constructed legislation."

The lawsuit was the first time a court has had to interpret the amendment. Shirley Dixon, an attorney who served on the North Puget Sound Oil Spill Risk Management Panel from 1999 to 2000, said the absence of lawsuits concerning the Magnuson amendment attests to its strength.

"The fact that it hasn’t come up in 28 years means it is a good law," Dixon said.

Felleman believes there have been numerous violations of the Magnuson amendment. Refineries have dredged their ports, effectively increasing their berthing capacity, he said. Washington refineries also export refined products, meaning more crude oil is being shipped in than is needed for the state. BP’s Cherry Point refinery ships more than 25 percent of its petroleum products to other states, including Oregon, Nevada and Arizona — none of which have their own refineries, Kidd said.

The decision of the appellate court ordered the impact statement in 2003. But the process is only beginning, and the corps will complete the statement in 18 to 24 months, said Olivia Romano, a corps biologist managing the project.

By that time the judgment might be a moot point because BP has put its weight behind the effort to overturn the Magnuson amendment. Internal e-mails obtained by the Seattle Post-Intelligencer show the company had foreknowledge of Stevens’ bill before he introduced it.

Ross Pillari, chief executive of BP, was one of several representatives from the world’s largest oil companies who testified to the Senate a day after Stevens introduced the bill. Stevens, who chaired the session, did not require the executives to swear in despite Cantwell’s insistence they do so. Stevens verbally reprimanded her for this request.

"One of the reasons she wanted them sworn in is because she wanted to know about their exports to ensure there wasn’t price gouging by sending exports overseas and thereby reducing supply at home," Charla Neuman, spokeswoman for Cantwell, said by e-mail.

If the corps determines that the new pier is in violation of the amendment, BP’s Cherry Point refinery might be regulated to its pre-2000 levels and have to drop its output by 10 percent, Kidd said.

After the recent attempts to overturn the Magnuson amendment, local and state legislators threw their support behind it. In December, both the Bellingham City Council and the Whatcom County Council authored letters to Congress expressing support for the amendment, and the Washington State Legislature penned a similar one shortly after.

The Legislature passed regulations to prevent oil spills in 2004, but it only applies to oil transfers from ship to shore. But Dixon said more regulation is needed. The ability of Puget Sound to respond to oil spills is well below that of Prince William Sound, she said. The strict regulations governing oil tankers in Prince William Sound came after the Exxon Valdez disaster.

"It’s not a matter of if it is going to happen, it is when it is going to happen," she said. "Do we want to wait until our whole region is ruined?"

The most effective regulation will have to come from the federal level. The Legislature has tried to impose oil tanker regulations before, but courts have consistently struck down the state laws.

"While federal law can choose to favor certain states over others in regulating interstate commerce, states themselves cannot pass laws that do that," said Paul Chen, a political science professor at Western. "Such laws, if challenged, would be found unconstitutional."

Cantwell has taken up Magnuson’s role by not only defending the Magnuson amendment, but also by strengthening it. According to her Web site, Cantwell plans to introduce new legislation to further lessen the risk of oil spills in Puget Sound.

The importance of laws protecting the sound from an oil spill is even greater because of the uniqueness of the sound. Despite the tragic effects of the Exxon Valdez accident, more is at stake in Puget Sound. Prince William Sound had a rich marine environment before the spill, but few human settlements lined the shore. The Puget Sound region is home to approximately 4 million people, several endangered species and harbors lucrative fishing and shellfish industries.

Given the current laws and regulations, major risks remain. An oil spill the size of the Exxon Valdez in Puget Sound would spread quickly because of strong currents, said Dinnel, who studies marine toxicology and ecology.

"Puget Sound would be saturated," he said.

Puget Sound has lower wave energy and weather extremes, making the sound less able to clear itself of a major spill than Prince William Sound, Dinnel said. It also is shallower than its Alaskan counterpart and has extensive tidal flats, such as the one south of Cherry Point.

"Once these areas are contaminated, they will stay contaminated for a long time," he said. "We’d have ecological chaos and we’d have economic chaos, and that would probably spill over into politics. It’d be one big nightmare. That’s why prevention is the only thing that is going to work."