Letter to the Whatcom County Council concerning the “Interim Moratorium” from Brian Israel of Arnold & Porter:
At its meeting on December 3, 2019, the Whatcom County Council voted to enact an eighth extension of the “Moratorium on the Acceptance and Processing of Applications and Permits in the Cherry Point Urban Growth Area the Primary Purpose of Which Would B the Shipment of Unrefined Fossil Fuels Not to Be Processed at Cherry Point.”
Before the meeting, the Council received a letter from Brian D. Israel, a senior partner in Arnold & Porter, a law firm in Washington D.C. which represents BP, the owner of the BP Cherry Point Refinery. In it, he details the manner in which these repeated “interim” moratoria, which have been in effect for 39 months, violate the “…letter and spirit of Washington’s Growth Management Act (“GMA”) and Planning Enabling Act”. He further asserted that the interim ordinance is inconsistent with the Whatcom County Comprehensive Plan, violates both federal and state substantive law, violates the U.S. Constitution and is preempted by several federal statutes.
The letter states, “If the County Council proceeds with the Proposed Moratorium, we reserve our right to challenge the ordinance in court.”
With the passage of this ordinance in the face of this serious threat, the Council exposes the citizens of Whatcom County with the considerable financial exposure resulting from not only this lawsuit, but many others by other parties operating at Cherry Point.
The total cost of these potential suits might well bankrupt Whatcom County. The cost of this would be borne, of course, by all of the citizens of Whatcom County. It is my opinion that this action by the Whatcom County Council is nothing less than reckless.