Simply put, the amendment prohibits new oil terminals or expansion of existing terminals in Puget Sound.
When, at the close of 2015, Congress killed the United States’ 40-year ban on exporting domestic crude oil, many wondered if the change would impact the Northwest, where the fossil fuel industry has been ramping up oil, fracked fuel, and coal shipment projects. In Washington, some observers asked about the so-called “Magnuson Amendment” to the Marine Mammal Protection Act, a little-known federal law named after the late Washington Senator Warren G. Magnuson that may protect against new oil terminals in the state and the oil-by-rail schemes that would supply them. Also known as the “little amendment” or “Maggie’s amendment,” it limits oil tanker traffic in waters east of Port Angeles by prohibiting federal permits that could increase that traffic.
The amendment was passed in the late 1970s, but debate continues over what it does and does not prohibit. It survived a 2005 repeal attempt from Alaska Senator Ted Stevens, and it has remained central to the debate and lawsuit over proposed changes to BP’s refinery at Cherry Point in northwest Washington.
If the many inquiries Sightline has received regarding the amendment are any indication, Maggie’s amendment could finally become a household name as the fight against oil-by-rail intensifies. So what is the Magnuson Amendment, and why does it matter today?
The origins of the Magnuson Amendment
In 1976 Republican Governor Dan Evans inserted a rule into Washington’s landmark coastal zone management program that banned oil port development anywhere east of Port Angeles. Evans declined to run for a fourth term and was succeeded by Dixie Lee Ray, whose campaign was strongly backed by ARCO, the original operator of the Cherry Point refinery. Governor Ray envisioned making Cherry Point an oil port hub where supertankers from Alaska would unload oil into a pipeline that would take the oil to the Midwest, and she made overturning the oil port ban a top priority. The state legislature tried to stop Ray by passing a bill that would have made the Evans-era rule on oil port development a state law, but Ray vetoed the bill and continued trying to undo the ban.
At the same time, 2,800 miles away in Washington, DC, Senator Magnuson was hard at work to stop Ray at the federal level. On October 4, 1977, the same day the state held the first public hearing on Ray’s proposal to change the oil port rule, Magnuson stood up during a routine funding reauthorization for the Marine Mammal Protection Act to propose what he called a “little amendment.” The amendment would prohibit federal agencies from granting any permits that would expand oil terminals in Washington east of Port Angeles. No other senator objected, and the amendment passed without debate. The House of Representatives passed it the next day, and President Jimmy Carter signed the amendment into law 12 days later. Just like that, Ray’s efforts were rendered moot.
What does the Magnuson Amendment say?
In his floor speech, Senator Magnuson said that his main concern was protecting Puget Sound and its natural resources by limiting increases in oil tanker traffic. As he put it, “the social costs of oil tanker movements in my state, in my view, simply outweigh the benefits.” His amendment, in full, reads:
Notwithstanding any other provision of law, on and after October 18, 1977, no officer, employee, or other official of the Federal Government shall, or shall have authority to, issue, renew, grant, or otherwise approve any permit, license, or other authority for constructing, renovating, modifying, or otherwise altering a terminal, dock, or other facility in, on, or immediately adjacent to, or affecting the navigable waters of Puget Sound, or any other navigable waters in the State of Washington east of Port Angeles, which will or may result in any increase in the volume of crude oil capable of being handled at any such facility (measured as of October 18, 1977), other than oil to be refined for consumption in the State of Washington.
Simply put, the amendment prohibits new oil terminals or expansion of existing terminals in Puget Sound. But in practice, it’s more complicated than that. For a development project to run afoul of the Magnuson Amendment, it would have to satisfy six different elements.
The first three elements are relatively straightforward. First, the federal government must be involved in some way, through an agency such as the US Army Corp of Engineers. Second, the project must require some sort of approval, like a permit, from that agency. And third, there must either be construction of a new project or some sort of renovation or modification of an existing terminal, dock, or facility that requires federal agency approval.
The other elements are a bit more complex. The fourth element involves the location of the facility. The law applies to any facility “in, on, or immediately adjacent to, or affecting the navigable waters of Puget Sound, or any other navigable waters in the state of Washington east of Port Angeles.” It’s a formulation that has raised questions about whether the law applies only to facilities affecting Puget Sound or to facilities affecting any waters in Washington east of Port Angeles, a small city on the Strait of Juan de Fuca in northwest Washington.
“The social costs of oil tanker movements in my state, in my view, simply outweigh the benefits.” – Senator Magnuson
The plain language of the law seems to clearly indicate that it applies anywhere east of Port Angeles, and the environmental law firm Earthjustice has used this argument in their opposition to a large oil terminal proposed on the Columbia River in Vancouver, Washington, which is east of Port Angeles. On the other hand, the preamble to the amendment and Senator Magnuson’s floor speech about the law focus almost exclusively on protecting the Sound. Legislative history and preamble clauses are two of the many tools courts use when interpreting ambiguous terms in statutes.
The fifth element is that the project might increase the volume of crude oil capable of being handled at the facility above the levels on October 18, 1977, the day the law was enacted. The law applies both to new terminals, because an increase from no crude oil to some crude oil is still an increase, and also to existing oil terminals that want to expand their crude oil operations. The only court case that has established precedent on the Magnuson Amendment, Ocean Advocates v. U.S. Army Corps of Engineers, decided by the 9th Circuit Court of Appeals in 2005, centered on a challenge to a 1996 permit issued to the BP Cherry Point Oil Refinery—the same refinery Governor Ray hoped to make into an oil port hub—for construction of a new dock.
BP argued that the Magnuson Amendment did not apply to its dock because the company voluntarily limited the use of the new dock from handling crude oil. Rejecting this position, the court ruled that because the language of the Magnuson Amendment says “may result” in an increase of crude oil, a project that even potentially increases crude oil handling capacity would violate the law. Thus, the court stated that if an additional permit would not be required for BP’s dock to handle crude oil in the future, then the permit at issue in the case would violate the Magnuson Amendment.
In Ocean Advocates, the court also took up the question of what an increase in capability looks like. The judges looked specifically at potential berthing capacity at the dock, which is basically the number of oil tankers that can rest at the dock. The court ruled that if the modifications authorized by the permit did result in an increase in potential berthing capacity of crude oil tankers at the terminal, even if the theoretical pumping capacity stayed the same, this too would be a violation of the Magnuson Amendment. In other words, an increase in potential berthing capacity counted as an increase in capability.
The last element is an exception to the rule. It says that the Magnuson Amendment does not apply if the additional crude will be refined for consumption in Washington. It’s an exemption that would, of course, not apply to projects built for the purpose of exporting crude oil. The exemption is murky, though, on at least one point: how to decide whether oil will be used only for consumption in Washington. Should decision-makers simply accept assurances of the project backers? Or might they need to evaluate whether the state’s oil consumption needs are already supplied by existing facilities?
Why Magnuson matters
Over the past few years, the Northwest has wrestled with an onslaught of oil development schemes. The region is home to the continent’s biggest proposals for newly constructed rail-to-ship oil terminals, and on top of that, various other sites have angled for a way to expand their crude-handling capacity on the sly. Of particular concern, many worry that absent the ban on exporting US crude, existing oil refineries on Puget Sound might begin acting as “transloading” facilities, simply taking crude oil from trains or pipelines and loading it directly onto tankers for export without first refining it into useable consumer fuels.
Although it’s likely that the Magnuson Amendment will be on the frontlines of the pitched battle over crude oil expansions in the Northwest, it remains to be seen exactly how much force the courts will allow it.
Curious about the crude oil export ban? Read more here.
Tarika Powell contributed research to this article. Sightline thanks Matt Krogh, Kristen Boyles, and Jan Hasselman for reviewing a draft of this publication.
Fred Felleman
I came upon the Magnuson Amendment during my years of effort to protect the Salish Sea from the catastrophic impacts of an oil spill. In 2000 I filed a lawsuit on behalf of Ocean Advocates et al against the Army Corps for issuing a permit for ARCO (now BP) to build a second refinery dock without first completing an EIS. After losing in federal district Court (in the weeks following 911 and BP is the largest source of defense fuels on the west coast) we prevailed in the 9th Circuit court of appeals. In the decade following, the Corps still as yet to complete their EIS and determination as to whether their permit is in violation of Magnuson. The public needs to contact our senators urging them to demand the Corps complete their court-ordered EIS. Friends of the Earth will be releasing an action alert to that end shortly.
In the mean time we need to avoid trying to apply Magnuson to regions it was not intended to protect so as not to instigate further efforts to render Magnuson moot through legislative shenanigans.
Regarding the provision applying to oil used for other than Washington State consumption it is important to note that Washington refineries already refine twice the amount of oil consumed in the State. Finally, my recent research has show that all the State’s refineries have used their docks as crude export terminals further documenting they are producing oil for other than Washington State consumption. A copy of the report I just completed for Friends of the Earth can be found at:
http://www.foe.org/projects/oceans-and-forests/oceangoing-vessels/tar-sands-report.
Fred Felleman
One important addition to my previous comment. Some may wonder how Magnuson could apply to a dock that has already been built (in the intervening years before our successful appeal). We are not asking for the dock to be removed. Rather, we are asking that there be a restriction on the number of tankers allowed to call on the terminal prior to the new dock being built. There is no question the Corps’ permit was in violation of Magnuson given 2 docks can handle more tankers than one. It’s just a matter of whether the Corps and Congress can overcome BP’s political influence. Please call Senators Cantwell and Murray to preserve Magnuson’s legacy and the health of the Salish Sea.
Kelly Rasset
“Finally, my recent research has show that all the State’s refineries have used their docks as crude export terminals further documenting they are producing oil for other than Washington State consumption.” I am curious how you determined all of the state’s refineries have used the facility to EXPORT crude? That whole idea is ridiculous. They bring oil in and process it they do not ship any oil. Please tell me where you determined the state refineries ship crude oil.