August 7, 2016  Paula Rotundi

Dear Whatcom County Council Members,
Only courts decide what the U.S. Constitution permits and what it prohibits. So I am concerned that County Council appears to be legislating and regulating according to lobbyists’ interpretations and Council Members’ own personal interpretations of the U.S. Constitution. Of particular concern to me are Council’s activities, decisions and comments July 12-26, 2016 regarding proposed changes to the Comprehensive Plan, Chapter 2, Land Use Cherry Point.
First, the Commerce Clause Article 1, Section 8, Clause 3, of the U.S. Constitution gives Congress exclusive power to regulate Commerce with the Indian Tribes. Whatcom County Council does not have the authority to regulate the commerce of Indian Tribes.

The courts have determined that in the U.S. Constitution the word “commerce” means commercial exchanges in any and all forms, including communications and the passage of persons for either business or pleasure. Whatcom County Council does not have the authority to regulate – impede or interfere with – the commerce of Indian Tribes including where or when Indian Tribes can fish or travel the shores and waters of the Salish Sea.
I request that Council be advised that it does not have the authority to regulate the commerce of Indian Tribes. I request that Council be advised of its lack of authority to permit development in the Cherry Point Area that interferes with or impedes the commerce of Indian Tribes.
I request that Council consider that pursuing policies now that would permit new, additional projects at Cherry Point may invoke a challenge jeopardizing all previous projects Council has permitted at Cherry Point.

Second, the Courts have determined that the Commerce Clause does not prevent states and local governments from having the authority to regulate interstate commerce when the regulation is for a legitimate and reasonable interest in protecting public health and safety. The courts have determined that state/local government’s interest in regulating for the benefit of public health outweighs interstate commerce concerns. Prominent examples are that the courts allow states and local governments to regulate tobacco and liquor commerce.

I request that Council be advised of the scope of its authority to regulate interstate commerce for public health and safety.
I request that council be advised of the legitimate and reasonable public health and safety concerns of transporting crude oil and coal through Whatcom County. I request that Council be advised of its authority to regulate crude oil and coal commerce in Whatcom County to protect public health and safety.
I request that Council consider that its rejection of proposals regulating crude oil and coal, exposes council to potential litigation for failure of its primary duty – protecting public health and safety.
I request that Council consider that its present pursuit of regulations and policies encouraging permitting of new unrefined fossil fuel industrial projects risks invoking a challenge that could jeopardize existing industrial operations at Cherry Point.

Third, the courts in several states including Washington State have determined that under the Public Trust Doctrine governments have an obligation to hold certain natural resources in trust for present and future generations and that government cannot permit the injury or destruction of those natural resources. The courts have determined that “natural resources” includes: Inland Navigable Waterways, Pubic Access, Water Quality and Water Rights, Fish and Wildlife Resources, and Air Resources.
Recently several children won a lawsuit against the Washington State Department of Ecology for failing to pursue rulemaking to reduce greenhouse gas emissions. On April 29, 2016 the State of Washington Supreme Court ordered the Department of Ecology to proceed with the rulemaking procedure to adopt a rule to limit greenhouse gas emissions. The Court’s “FINDINGS OF FACT” included:
“The effect of climate change on water supplies, public health, coastal storm damage, wildfires and other impacts will be costly unless additional actions are taken to reduce greenhouse gases.”
“Current science establishes that rapidly increasing global warming causes an unprecedented risk to the earth including land, sea and atmosphere and all living plants and creatures. “
“Washington faces serious economic and environmental disruptions from the effects of climate change.”
“The climate crisis presents an urgent situation that youth petitioners cannot wait on.”

I request that Council be advised of its authority and legal responsibility to adopt regulations that protect Whatcom County’s natural resources for future generations.
I request that Council be advised that its present pursuit of regulations and policies encouraging the permit of new unrefined fossil fuel industrial projects risks invoking a challenge that could jeopardize existing industrial operations at Cherry Point.

Finally, I request that Council establish a meeting agenda timeline for legal counsel to provide advice on these issues to Council Members.
Sincerely,
Paula Rotondi