Spokane rail proposition likely to place taxpayers on hook for legal defense

The Spokane City council stands divided over how the city should fund the litigation of a proposed rail proposition should voters approve it in the fall. Photo: Prayitno

In July, the majority of the Spokane City Council denied two advisory votes which would have allowed taxpayers to weigh in on how the city would fund the legal defense of a proposition which would fine rail car owners transporting certain fossil fuels within city limits.

Council President Ben Stuckart argues it would be up to the measure’s backers to enforce the measure and fund its litigation, as it would lie outside of the city’s jurisdiction. However, one council member says the financial burden would ultimately fall to city residents, who deserve a voice in the conversations as it moves forward.

“If we don’t have the capacity in the general fund or individual accounts to fund a legal strategy, then one of the questions we are going to have to ask is if we seek out new revenues or if we have to raise taxes,” said councilmember Mike Fagan.

“This measure is unenforceable and will result in unnecessary legal bills for the taxpayers of our city,” said Spokane Mayor David Condon in an online statement.

“I am deeply concerned about what this could do to our city and our economy, with no evidence that it would help our environment or safety,” he continued. “This measure goes against independent legal review and sets the city up for significant, costly legal challenges that would divert already limited resources from programs and initiatives focused on areas that this attempts to address.”

The county’s police force also expressed concern that money would be taken away from hiring officers needed for public safety.

“The way the measure reads, we are going to be put in the position to try and enforce inspections of trains,” said Fagan. “What is being asked by the citizen’s group was definitely illegal and impossible to enforce.”

“I’ve talked to the mayor before,” Stuckart told Lens. “If the citizens pass this in November, it would go on the books, but the mayor has already told me his position is he would not enforce this, because we already have a hearing examiner ruling it is outside of the bounds of the city’s jurisdiction.”

Last month, the Spokane City Council approved Proposition 2 which would fine rail car owners $261 per car for shipping crude oil and coal cars through Spokane city limits if it did not meet certain prescribed criteria.

Since 2015, Washington has mandated that crude oil carried via rail must read at 14.69 psi or lower. North Dakota, where the crude oil originates form, has determined 13.7 psi to be the standard for “stable, dead crude oil,” which includes a 1.0 psi margin of error. Therefore, the commodity is already conditioned to the proposed requirement before it is transferred to a rail car.

Business stakeholders have voiced their concern for the measure’s effect on Washington’s trade competitiveness should voters approve it in November.

“Are we going to have checkpoints on the tracks or require bill of ladings and cargo manifests?” asked Fagan. “Things like needing to have a cover on the coal trains… who is going to be looking for that?”

Someone would also have to verify the pressurization of oil to the required psi, he added.

“The whole premise behind this initiative in my mind is to go after fossil fuels, and it feeds directly into the global warming narrative,” said Fagan.

Over the past five years, the city has worked to meet EPA and Department of Ecology regulations through additional storm water mitigation techniques, according to Fagan. One addition was the use of combined sewer overflow (CSO) tanks which can pipe any river contaminations directly to the sewer treatment plant.

“To hear some of the fear mongering that goes on that an oil spill is going to pollute our river is unfounded in my mind,” said Fagan.

A few weeks ago, the initiative was brought before the council while the council president was in Washington, D.C.

“As a last moment effort, I did come forward with two advisory votes asking what to do if this thing is voted in and approved by voters, knowing there would be legal challenges to it,” said Fagan. 

The first advisory measure would have asked voters if the council should investigate other funding sources for legally defending the ordinance, should it pass. The second would have asked city residents if the council should reduce money within General Fund programs to reallocate for legally defending the initiative.

Stuckart called the advisory votes biased and unnecessary, as the city’s legal team determined the measure would be unenforceable under city powers.

“There is no legal front,” said Stuckart. “It makes an argument that is not true.”

On Monday, July 31, the council voted 5-2 against a motion to discuss the two advisory votes.

Fagan said the city’s general fund would be used to litigate cases stemming from the measure’s passage.

Cases sent to the state Supreme Court could cost upwards of $1 million, estimated Fagan. That figure could increase to $3 million if they were elevated to the U.S. Court of Appeal for the 9th Circuit or the U.S. Supreme Court.

The city is insured up to $1 million, according to Fagan. Additional funds would likely come from the risk management pool portion of the general fund.

“The council once again decided to feign all of those concerns and moved forward and put this thing on the ballot,” said Fagan. “In doing so, they put the taxpayers, the people we represent, on the hook.”

Another concern is informing voters of the full context of what the proposition is asking, according to Fagan.

“I’m afraid it would be worded such that there isn’t enough detailed information to make an informed choice,” said Fagan. “At the end of the day, it could end up on the ballot making a simple statement that should we fine coal and oil trains due to their explosive nature or whatever the case.”

According to Spokane’s elections office, voter guides for local initiatives are no longer mailed out and are only available online.

“That was a primary reason why I wanted to have the advisory votes out there, to act as an additional informational and educational source to catch the voters’ eyes and cause them to think about the issue and search out information so they can make an informed choice,” said Fagan.

Not all Spokane residents will have access to the internet to learn more about the proposition, he added.

Fagan said he has heard indications that private groups are currently discussing legal strategies and possible actions to combat the initiative, which may happen before or after the election.




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