January 13, 2022

Environmental, Natural Resources, & Energy Law Blog

Greenwashing the Emerald City: A War of Words is Brewing Over Salmon Passage on the Skagit River as FERC Relicensing Approaches - Andrew Alsdorf

Seattle has earned a reputation as one of the most politically progressive cities in the nation, a place where its residents treasure the natural beauty around them and vote to protect it. However, Seattle voters likely are unaware that 20% of their electricity comes from three hydroelectric dams on the Skagit River that, according to the Native Americans who have depended on the Skagit’s bounty of salmon for 8,000 years, are the primary obstacle to the long-term health of this resource which is dwindling before our eyes. Likewise, the iconic Orca whale is slowly starving as its primary food source returns in ever-shrinking numbers to the rivers feeding the Puget Sound. The cultural, economic, and environmental prominence of salmon in the Pacific Northwest is a societal touchstone not just for the tribes, but for many Seattleites as well.

One can hardly blame the average Seattleite for being unaware of the damage to salmon wrought by the Ross, Diablo, and Gorge dams on the Skagit river. After all, the City’s publicly-owned electric utility, Seattle City Light, has told its customers since 2013 that it is the “Nation’s Greenest Utility.”[1] As of this writing, the utility still publicly claims “We’re Green. Really Green,”[2] and refers to local Native American tribes as “partners” whose collaboration is vital to the upcoming FERC renewal application due in 2025.[3] If granted, a renewed FERC license would enshrine the current meager fishery levels as the status quo for the next 30-50 years.

Seattleites who are inclined to trust the utility’s public statements regarding the Skagit River hydro project and its relationship with affected tribes would likely be very surprised to learn that the Sauk-Suiattle Indian Tribe does not consider Seattle City Light to be a collaborative partner at all, but rather a defendant who must account for its violations of state law and its “relentless greenwashing of its Skagit Project and environmental performance.”[4] On September 17, 2021, the tribe filed a lawsuit in King County Superior Court alleging deceptive trade practices under the Washington Consumer Protection Act (RCW 19.86, et seq.) seeking no monetary damages but rather declaratory and injunctive relief. Simply stated, the Tribe wants a court order to force the utility to stop misrepresenting the role the Skagit River dams play in the struggle to fortify the river’s fishery.

The origins of the dispute between the City and the Tribe date back to the 1917 construction of the dams, when the Tribe’s permission was neither sought nor obtained by the City before construction. The divergence between these two stakeholders grew, however, in 2003 when the City sought a special certification for the Skagit dams from a nonprofit organization called the Low Impact Hydropower Institute (“LIHI”).[5] This certification is the hydropower equivalent of a “Certified Organic” stamp on food packaging, designed to signal to consumers that they are consuming power from a project that has “avoided or reduced environmental impact according to LIHI’s criteria.” [6] With 711 megawatts of capacity, the three dams collectively became the largest hydropower project in the nation to receive the coveted LIHI certification. This LIHI certification increases the value of the electricity generated on the Skagit River because it can be sold as environmentally-friendly to Seattle’s ratepayers, or to other utilities seeking to increase their proportion of green renewable electricity.[7]

The Tribe strongly objected to the LIHI certification when it first happened in 2003, and again when it was renewed in 2017, based on the fact that the dams create barriers to fish passage.[8] The LIHI certification process requires compliance with eight criteria, among them Upstream Fish Passage and Downstream Fish Passage and Protection.[9] The Tribe’s complaint sets forth compelling evidence that the scientists reviewing the project’s 2003 application recommended against awarding LIHI certification to the dams on the grounds that they impermissibly blocked fish passage. But the LIHI fish passage criteria allow an exception, i.e. an excuse to ignore the fish passage requirement entirely, if evidence establishes that fish did not historically migrate in the area prior to dam construction. Thus, the true dispute became a historical one to determine whether the exception applied – where and when did salmon populate the upper reaches of the Skagit?

One might think that the tribes’ answer – that anadromous steelhead historically migrated the entire reach of the Skagit including beyond the Gorge dam – would carry significant weight considering their continuous reliance on that resource since Time Immemorial. Instead, LIHI relied on a consulting firm’s 1988 report commissioned by the City which, according to the Tribe, is nothing more than a “…carefully curated…selection of historical hearsay….”[10] The Executive Director of LIHI in 2003, Lydia Grimm, dismissed the scientists’ objections as “overly literal” in her memorandum to the LIHI board in which she overruled the scientists on the key issue.[11]

While the scientific back-and forth about the historical geographic reach of anadromous steelhead in the Upper Skagit is beyond the scope of this article, it is notable that the tribe has collected wide-ranging and authoritative support for its scientific position, including reports from NOAA Fisheries, US Fish and Wildlife Service, Washington Department of Fish and Wildlife, the National Park Service, and the tribes themselves. These stakeholders agree that the dams present an unacceptable barrier to fish passage.[12] The simple observation that LIHI finds itself at odds with scientists at these agencies is perhaps the most salient proof that science might have taken a back seat to other interests when the LIHI certifications were granted.

The Tribe’s lawsuit devotes much attention to the LIHI certifications in 2003 and 2017, as they are crucial to understanding the history and nature of the grievance between the Tribe and the City. However, it is important to acknowledge that the Tribe did not name LIHI as a party in its lawsuit, whereas it was clearly the party responsible for the certification decision. If the Tribe was intent on reversing the LIHI certification itself, it seems clear that LIHI would need to be a party before a judgment could be rendered against it. In addition, the offending certifications occurred 18 and 4 years ago, respectively. In both instances, the 4-year statute of limitations appears to bar any claim for damages directly related to those certifications.[13]

Instead, the Tribe has employed a rather novel approach to environmental litigation by describing the City’s use of the LIHI certification as a deceptive business practice. The extremely broad language of the Washington Consumer Protection Act makes such a claim possible: a plaintiff simply needs to establish (not beyond a reasonable doubt, but merely by a preponderance of the evidence) that the disputed practice is contrary to the public interest because it either did or could harm someone.[14]

On the issue of harm, the Tribe notes that it has longstanding property rights conferred by the land itself, and later by Treaty, to fish their ancestral river. Under this theory the Skagit’s dwindling salmon counts year after year are a partial byproduct of the City’s greenwashing campaign because it has fostered a local belief that the City is an appropriate and committed environmental steward of the Skagit ecosystem. Thus, the Tribe’s efforts to publicize the true harm wrought by the dams are met with indifference or confusion, drowned out by the City effectively making themselves the loudest voice in the room.

Beyond tangible property rights in the form of salmon, the Tribe also asserts that its “reputation and brand [is] inherently connected to [the] public perception and reputation of the health, environmental responsibility, and sustainability of the Skagit ecosystem.”[15] In the same vein, they assert that the City’s rose-colored pontifications about the health of the Skagit ecosystem undermine “public faith in legitimate environmental initiatives” because the words so clearly do not match the facts in the river.

The Tribe also asserts that electricity ratepayers served by countless other utilities have been harmed by purchasing LIHI-certified power from the Skagit river, sold by the City at a premium compared to non-LIHI-certified power.[16] By cashing in on the valuable LIHI acronym when scientists from nearly every involved agency said fish passage deficiencies should cause the LIHI certifications to be denied, the City has essentially sold those non-Seattle customers a product with a misleading label of “green power” when the label is not deserved. This deception redounds directly to the benefit of Seattle’s ratepayers in the form of lower rates for themselves because the City can “afford” to offer them.

The harms set forth in the Tribe’s complaint appear at first blush too amorphous to calculate, but according to the Tribe the City simply refuses to release the records that would allow a computation of that harm in dollars and cents. It is possible that one of the goals of this lawsuit is to initiate a court-supervised discovery process that would require the City to disclose that information. It certainly appears that the Tribe has presented a colorable claim for deceptive business practices under the Washington Consumer Protection Act that would at a minimum produce the discoverable documents needed to calculate damages.

Remember, however, that the Tribe isn’t asking for a single penny in damages, at least not yet. They are seeking a court order declaring that the LIHI certification of the Skagit Project is a deceptive business practice, and they want the same label applied to the City’s repeated use of phrases like “Steward of the Skagit Ecosystem” and “Nation’s Greenest Utility.”[17] Is this really the end-game for the Tribe, a court order telling the City that they shouldn’t have used certain phrases? If that were the case, this lawsuit might be criticized as an expensive effort toward minimal effect.

But the Tribe’s lawsuit is already garnering local media coverage in both television and print, and when large institutions such as Tribes and Cities are involved, one must always keep one eye on the court of public opinion. Seattle’s electorate is particularly amenable to criticism centered in cultural inequity, which is exactly what the Tribe has alleged along with the obvious environmental harm. The Tribe appears to know its audience very well, and has decided that the time has come to put a stop to the City’s narrative in which the City is the “Steward” and the Tribe is a collegial and compliant “collaborative partner.” The Tribe has shed light on the truly deceptive nature of that characterization by using strong language of its own, accusing the City of “rear-guard trench warfare” in its approach to delay the FERC relicensing proceedings.[18] At a minimum, one can safely say that the Tribe’s lawsuit should put an end to the prevailing consensus that the Tribe and the City are on the same side of this issue. That realization alone may be enough to swing public opinion, and eventually votes, to their side.

No one cares more about what Seattle voters think than the elected members of the Seattle City Council. On September 22nd, just five days after the Tribe filed its lawsuit, the Council unanimously approved a $2.5 million initial investment, with an additional $500,000 annually until FERC relicensing is accomplished, to mitigate the dams’ impacts on salmon and their habitat.[19] The timing certainly supports a theory that the lawsuit played a role in the Council’s appropriation of these funds. The City’s press release included laudatory quotations from the CEO of City Light Debra Smith, and Mayor Durkan, but no comments from anyone associated with any of the affected Tribes. Viewed in the unfavorable light cast by the Sauk-Suiattle Tribe’s lawsuit alleging deceptive trade practices, these funds appear dual-purposed – damage control can serve both environmental and reputational ends.

If the Tribe’s lawsuit is part of a new and more assertive public relations strategy aimed directly at Seattle’s voters, it appears that City Light CEO Debra Smith is listening. “On a personal level it was horrifying to be painted as someone who does not care about fish, because I absolutely do,” she said in response to the lawsuit.[20] Now three months past the filing of the lawsuit, the tribe has taken their very public disagreement with the City a step further by suggesting that the City’s Native-American name and logo may be ill-suited for a City that does not honor the commitments to native fisheries that were promised in treaty. In a Seattle Times Op-Ed, the Chairwoman of the Tribe and the Tribe’s lead counsel argued that “it’s not just…sports teams whose use of an Indian name might be considered offensive. It’s the whole city and its power utility. Everyone who has Seattle in their address is a shareholder in solving this problem.”[21]

Through its lawsuit and a direct messaging campaign to Seattle residents, the Tribe has clearly stated that it intends to be an assertive voice in the upcoming FERC relicensing on the issue of fish passage. Their voice will likely resonate with Seattleites, just as it did with the CEO of Seattle City Light, and that may ultimately be more valuable than any relief a court could order.

 

[1] Complaint at 17, Sauk-Suiattle Indian Tribe v. City of Seattle, No. 21-2-12361-5 SEA (King Cnty. Super. Ct. filed Sept. 17, 2021).

[2] http://www.seattle.gov/city-light/about-us (last visited Dec. 13, 2021)

[3] Moore, Julie, Seattle City Light Creates Multimillion-Dollar Fund to Support Fish on the Skagit (Sep. 22, 2021), https://powerlines.seattle.gov/2021/09/22/seattle-city-light-creates-multimillion-dollar-fund-to-support-fish-on-the-skagit/ (last visited Dec. 13, 2021).

[4] Compl., supra n.1, at 1.

[5] Compl., supra n.1, at 3.

[6] https://lowimpacthydro.org/about-us-2/ (last visited Dec. 13, 2021).

[7] Id.

 

[9] Compl., supra n.1, at 4.

[10] Id. at 7.

[11] Id.

[12] See Id. at 8-15.

[13] RCW 19.86.120.

[14] See RCW 19.86.093.

[15] Compl., supra n.1, at 19-20.

[16] Id. at 20.

[17] Id. at 25.

[18] Id. at 15.

[19] Moore, Julie, Seattle City Council Creates 2.5 Multimillion-Dollar Fund to Support Fish on the Skagit (Sep. 22, 2021), https://powerlines.seattle.gov/2021/09/22/seattle-city-light-creates-multimillion-dollar-fund-to-support-fish-on-the-skagit/ (last visited Dec. 13, 2021).

[20] Mapes, Lynda, Fish Passage, Dam Removal Studied as Seattle City Light Aims to Relicense Three Skagit River Dams, Seattle Times, Dec. 6 2021, https://www.seattletimes.com/seattle-news/environment/fish-passage-dam-removal-studied-as-seattle-city-light-aims-to-relicense-three-skagit-river-dams/ (last visited Dec. 13, 2021).

[21] Maltos, Nina and Fiander, Jack, Honor Chief Seattle By Building Fish Passage Through Skagit River Dams, Seattle Times (Op. Ed.), Dec. 7, 2021, https://www.seattletimes.com/opinion/honor-chief-seattle-by-building-fish-passage-through-skagit-river-dams/ (last visited Dec. 13, 2021)