"Judge rejects challenge to Sea-Tac third-runway permit"

Tuesday, August 19, 2003

Judge rejects challenge to third-runway permit 
By Eric Pryne
The Seattle (WA) Times

 
A federal judge in Seattle yesterday gave Seattle-Tacoma International
Airport's proposed third runway a big boost, upholding a key federal permit
for the project. 

U.S. District Judge Barbara Rothstein dismissed a lawsuit opponents had
filed challenging the Army Corps of Engineers' decision last December to let
the Port of Seattle fill 18 acres of wetlands and build the 8,500-foot
runway on top. 

In a 43-page order, Rothstein said repeatedly that her job wasn't to
substitute her judgment for the corps' or to settle disputes among
scientific experts - but rather to simply determine whether the agency's
decision was arbitrary or capricious. 

It wasn't, she concluded. 

Port general counsel Linda Strout said the agency was "very pleased" with
Rothstein's decision. "It shows the Army Corps of Engineers did their job
when they issued the permit," she said. 

Representatives of the Airport Communities Coalition, which filed the
lawsuit, said they would have no comment until today on the ruling, released
late yesterday afternoon. 

Rothstein's order removes a roadblock that had threatened to cause more
delays for the controversial runway, which the Port of Seattle now says will
cost more than $1 billion. The Port hopes to finish it by 2008. 

But "we have no plans to go out and fill wetlands this week or next week at
this point," Strout said. 

The project isn't through with lawyers and judges yet. The Port has
challenged eight of 16 conditions the state Pollution Control Hearings Board
imposed earlier this year to protect water quality. The state Supreme Court
is scheduled to hear the case this fall. 

Those 16 conditions played a prominent part in the federal lawsuit Rothstein
dismissed yesterday. 

Deadline had passed 

In September 2001, the state Department of Ecology gave the Port permission
to fill the wetlands for the runway. Opponents appealed it to the hearings
board, which also approved the permit but added the conditions. 

The corps incorporated seven of the 16 in its permit. The Airport
Communities Coalition asked Rothstein to reject the permit, noting that the
federal Clean Water Act requires that the corps' fill permits include all
conditions required by the state. 

But the Port and the corps argued that, under federal law, the state had one
year after the application was filed to adopt its conditions, and the
hearings board didn't act until after the deadline. That meant the corps was
free to pick and choose among the 16 conditions, they argued. 

Rothstein agreed, noting that Congress had imposed the one-year deadline to
keep states from killing federal permits through inaction. The deadline
applies even if a state is in the process of adopting conditions, she wrote.
The state has other avenues for imposing its requirements, she added. 

Agency backs opponents 

In a curious twist, the Department of Ecology, which also has challenged
some of the Pollution Control Hearings Board's conditions before the state
Supreme Court, weighed in on the federal lawsuit on behalf of runway
opponents, expressing concern about possible erosion of state sovereignty
and the precedent the case might set. 

Joan Marchioro, assistant attorney general for Ecology, said the
circumstances surrounding the runway permit were unusual. "We haven't had
this issue come up at all before, and hopefully it won't come up again," she
said. 

"We did want to make the judge aware of our concerns." 

Strout said she doesn't think Rothstein's decision is binding on the state
Supreme Court, "but we certainly hope they take notice." 

Rothstein also rejected the Airport Communities Coalition's claims that the
corps had acted illegally by failing to conduct more studies on the need for
the third runway and on possible contamination from the fill dirt. 

The cost to build the new runway, which would parallel the two existing
runways and was first proposed in 1987, was estimated at $430 million in
1995. In 1999 the estimate grew to $773 million, and now it's more than $1
billion.


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