January 31, 2011

Court rejects environmental "Chicken Little" arguments in PLF victory

By Court rejects environmental "Chicken Little" arguments in PLF victory

Author: Daniel Himebaugh

Today, the Washington Court of Appeals upheld San Juan County property owner Chris Hughes' permit to build a single-family dock.  Last spring, PLF filed an amicus brief supporting Hughes in his struggle to defend the project from an environmental group that alleged that the dock would spark global eelgrass decline.

In short, Hughes sought permission from the county to build a dock to serve his Pearl Island residence.  The county granted the permit, subject to conditions.  That's when Friends of the San Juans appealed the permit to the Shorelines Hearings Board, alleging that Hughes' dock would do irreparable damage to the environment, even though Hughes proposed to build the most environmentally friendly dock possible.  Friends' parade-of-horribles arguments persuaded the Board to overturn Hughes' permit, although the Board admitted that the evidence was "insufficient" to "determine with any certainty the extent and long-term consequences" of the dock's impact on eelgrass.

PLF argued that Friends' allegations of environmental impact were merely speculative, and that the Board was wrong to invalidate Hughes' permit.  We also told the court that by accepting Friends' environmental fears as truth, the Board illegally shifted the burden of proof to Hughes.  Indeed, that shift was apparent in the Board's decision, where it required Hughes to prove an absence of harm to eelgrass, instead of requiring Friends to actually prove the eelgrass impacts that they alleged.


PLF's arguments resonated with the court.  In today's decision, the court held that, "[The Board] in effect relieved [Friends] of its burden of proving impacts that required denial of the permits, and bases denial on Hughes's failure to disprove a speculative harm.  This was legal error."

Hughes' case could have huge ramifications for shoreline permitting in Washington, and environmental law in general.  The essence of our argument, which the court endorsed, is that government cannot base its permit decisions on hypothetical environmental impacts.  Such overly "precautionary" decision-making waters down the need for a person challenging a permit to show a connection between the proposed development and the alleged impacts.  This, in turn, harms property rights by putting landowners in the situation of having to prove that their proposals are absolutely environmentally safe.  As we argued in our amicus brief, this will always be impossible to do because all human activity, including property development, involves some degree of risk.

We are very pleased that the court recognized the dilemma that the precautionary principle creates for property owners.  Environmental harms must be proven before the government should even consider restricting a property owner's project on the basis of environmental impact.

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