4 Key Environmental Issues Facing Washington

Washington has taken steps in recent years to create laws and regulations aimed at keeping the Evergreen State green, but as its population and climate vulnerabilities grow, it's facing environmental issues involving water quality, wildlife and agriculture, raising compliance concerns for industry and fueling conservationist missions.

The state has worked to strengthen environmental standards and practices, but green groups say lawmakers and regulators could go further. At the same time, industry representatives warn of the costs of what they see as new burdens, such as installing new air pollution control technology or better controlling agricultural waste.

In the thick of things are the Evergreen State's environmental attorneys, who are fielding a growing number of increasingly complex questions from clients about these issues and more, said David Weber, managing principal of Beveridge & Diamond PC's Seattle office.

"Washington State is a laboratory for muscular environmental regulation, from its economywide Climate Commitment Act to the enactment of the strongest state chemicals bill in the country," Weber said. "For environmental lawyers, the relentless pace of new legislation and rulemakings highlights the importance of being proactive in monitoring and unpacking proposed rules for clients."

Here are four pressing environmental issues in Washington state.

Climate

Under the Climate Commitment Act's "cap-and-invest," or cap-and-trade program, the state sets a greenhouse gas emissions cap and then decreases the limit over time to meet statutory reduction requirements. This program, along with other fuel and hydrofluorocarbons programs, is supposed to help the state meet a goal of net-zero carbon emissions by 2050. The CCA was passed in 2021, and the state spent last year gathering emissions data from entities covered by the law. The first cap went into effect in January, and the first credit auction will be held this month.

Robert Smith, a partner in K&L Gates LLP's Seattle office, said Washington's cap-and-trade program has similarities to California's but includes some modifications. Before Washington's law passed, California was the only single state operating such a program. On the East Coast, 12 states participate in the Regional Greenhouse Gas Initiative.

Smith said attorneys and businesses are going to have to be on top of their game to make sure they're complying with the new regime.

"It's going to be a pretty significant thing this year, in terms of making sure that regulated entities that need to comply are aware of those requirements, and learning how to comply in terms of striking a balance between getting emissions numbers down on their own … and needing to go to the auction," Smith said.

One of the unique features of Washington's program is that proceeds raised from the auctions will go to fund new investments in climate resiliency programs, clean transportation and efforts to address health disparities across the state.

"There is a very strong environmental justice component in how this is set up," Smith said. "So there will be an Environmental Justice Council that will provide recommendations on where the money goes."

The Duwamish River

On its way into Seattle's Elliott Bay, the Duwamish River travels through a heavily industrial area. More than 40 businesses are negotiating how to split the estimated $1 billion cost of cleaning up this lower portion of the river, including The Boeing Co. and the Port of Seattle. The port is suing Boeing in federal court, alleging the aerospace company is not paying its fair share. The lawsuit is currently stayed pending further negotiations between the parties.

Beveridge & Diamond's Weber, who represents several parties in the cleanup that are not involved in the lawsuit, said the litigation potentially jeopardizes the ability of all parties to resolve the matter.

As the Lower Duwamish process plays out, community and green groups are focused on starting to clean up another part of the river in Seattle, the East Waterway, said Patti Goldman, a senior attorney at Earthjustice who is based in Seattle.

She said there has been some conflict between the government agencies involved in overseeing any cleanup and Earthjustice's client, the Duwamish River Cleanup Coalition, about what is needed at the site.

"Seattle became the city it is because of the Duwamish River, but the river suffered as a result," Goldman said. "Cleaning up the river and reducing the air pollution that plagues this overburdened community will challenge lawyers to ensure implementation of bedrock environmental laws and evolution of those laws to incorporate environmental justice principles."

Puget Sound

Puget Sound, which, along with waters in Canada, is part of the Salish Sea, provides Washingtonians and visitors with an abundance of resource and recreation opportunities. But the sound and its wild inhabitants have suffered from industrialization, development and population growth in the area. The U.S. Environmental Protection Agency, the Washington State Department of Ecology, Native American tribes and many other local community and business groups have been part of an ongoing conversation about how to improve the sound. Significant funding, new regulations and voluntary boat measures are some of the ways the organizations are approaching the problem.

Congress doles out money to the EPA as it works with state agencies, local and tribal governments, universities and nongovernmental organizations to help protect and restore Puget Sound.

One of the key issues in the sound is the survival and health of the Southern Resident population of orcas.

"Orcas and the salmon they eat are the essence of Washington state and the Salish Sea, existential to the tribes, at the core of the state's history, and our moral responsibility now that they are on the Endangered Species list," Goldman said. "Our environmental laws have the potential to recover orcas and salmon, but only if they are faithfully implemented, which is why lawyers are critical to their fate."

Several programs are aimed at helping the killer whales, from reducing noise and traffic on the sound to mandating that sightseers keep a greater distance from them in the water.

Water quality is also an issue for the sound. In November, the EPA laid out a final rule to reestablish water quality standards for Washington state that were rolled back during the Trump administration and are aimed at protecting people who eat fish and shellfish caught in the state.

And last year, a D.C. federal judge upheld an EPA finding that allowed Washington to prohibit commercial and recreational vessels from discharging their sewage into Puget Sound.

Agriculture

State regulators, the agricultural industry and environmentalists have been battling over concentrated animal feeding operations for a few years now. Agriculture accounts for about 12% of Washington's economy, making the sector a major component, according to the Washington Farm Bureau, an industry trade association. From wheat fields and apple orchards to dairy farms and aquaculture, the state boasts a diversity of agricultural endeavors.

Conservation groups secured a victory in their challenge to waste discharge permits used by dairy farms in Washington after a state appeals court found the approvals don't provide adequate protections to ensure excessive manure runoff doesn't pollute nearby water sources.

In December, the state Ecology Department reissued the general permit after incorporating the court's feedback, but the same coalition of green groups that challenged the authorization the first time say the department once again failed to issue a permit that meets legal standards. They have filed a new administrative challenge that could also end up in court.

"Ecology is failing at doing what the law requires in terms of actually doing analysis of what the reasonable treatments are and requiring each facility to implement those," said Andrew Hawley, a senior attorney at Western Law Environmental Center based in Seattle, who is representing the green groups.

Aquaculture is big business in Washington, too, and is going through its own period of regulatory reform.

Smith of K&L Gates noted that the state is one of the few in the nation that allow private ownership, sale and leasing of tidelands. But in November, the Washington State Department of Natural Resources announced a ban on commercial finfish net pen aquaculture on state-owned aquatic lands. The move aligns Washington's net pen salmon aquaculture policy with those of Alaska, California and Oregon.

Cooke Aquaculture Pacific LLC and the Jamestown S'Klallam Tribe have filed separate lawsuits in state court challenging the state's move.

"This is a pretty significant policy change," Smith said. "How this litigation plays out may also tell us a little bit more about the parameters of DNR authority generally as a title lessor, and how much leeway they have to terminate leases or not renew leases, which also could be generally applicable to things like shellfish aquaculture that also has a lot of state leases currently in Washington."