Should governments hold developers responsible for environmental impacts that aren’t caused by their projects? That question is front and center in Olympia right now.
Forces within the legislature are making a strong push to require net ecological gain as the new standard of measurement for each environmental, development and land use regulation.
HB 2550 defines net ecological gain as a standard for a development project, policy, plan, regulation or activity in which the impacts on ecological integrity caused by the development are outweighed by measures to mitigate. The bill has already passed the first hurdle in the legislative process – being voted out of its policy committee. It is likely headed to the floor of the House chamber for a vote.
The original version of the bill would have standardized net ecological gain as a statewide policy. It also directed all state agencies with rule-making authority to adopt rules implementing the new standard. Finally, the bill included a requirement for a study that would consider various things related to the new standard, including an assessment of opportunities and challenges for local government implementation.
Yes, you read that correctly. The original proposal was to adopt the standard as a statewide policy, adopt new statewide rules, and then assess impacts to local governments like counties.
Currently, local governments regulate based on the standard of “no net loss.”. In other words, land use laws and development regulations are designed to ensure that projects do no harm, or don’t make things worse, from an environmental impact perspective.
Case law, Washington State Law (RCW 82.02.020 and RCW 36.70A.172 (1)) and the United States Constitution (5th Amendment) provide the basis for this long-held current standard. Simply put, government cannot require new development to solve an existing problem that has not been caused by the proposed development as a condition of approval. Doing so would likely expose the permitting agency to litigation and takings compensation costs.
The good news is the original version of the bill is not moving forward, and we’re pleased to report that our voices and concerns are being heard in this process. The most recent version of the bill has been scaled back to the study proposal. That’s a big step in the right direction.
The study will include:
- An assessment of how to incorporate the new standard into state laws, including the GMA;
- An assessment of the opportunities and challenges for local governments;
- Recommendations on funding, incentives, technical assistance, monitoring and the use of scientific data in making the updates to the new standard; and
- Assessment of how applying a standard of net ecological gain is likely to achieve substantial environmental or social co-benefits.
But for counties, many questions and concerns remain.
For starters, what’s not included in the study:
- A legal analysis of the liability associated with the shift in standards;
- An assessment of the causes of ongoing “net loss” in a regulatory environment designed to demand and achieve “no net loss;”; and
- An assessment of the costs to state and local government, including development and implementation of the net ecological gain standard.
It’s hard to argue the concept of net ecological gain isn’t in our best interests. Much of our identity, our quality of life, our economies and our livelihoods are dependent on our environment.
But what can be implemented legally? If legal concerns can be overcome, is it right to hold new projects responsible for impacts that are not related? Or, should another solution be found that fairly distributes responsibility for a new standard of net ecological gain and the needed environmental restoration?
Finally, while a net ecological gain standard may help us achieve a restored environment that will endure and sustain for generations, it won’t happen just by changing standards, adopting goals, and implementing regulations.
We all want a healthy environment, clean air, and pristine water. But is the legislature really prepared to step up, take responsibility and invest heavily in this new standard?
To get there, from here, it will take money. Lots of money. And local governments won’t be able to do it alone.
