Don Brunell

In 1915, Franz Kafka wrote a novel about a man who was arrested by two unidentified agents from an undetermined agency and put on trial before unseen judges for an unspecified crime. He was compelled to defend himself without knowing what crime he’d allegedly committed.

The proponents of new shipping terminals in Washington must know how that feels.

For example, the Gateway Pacific Terminal at Cherry Point would ship a variety of bulk commodities to Asia, including grain and potash, a component of fertilizer. But the commodity that has garnered the most attention is coal. As part of their national campaign to end the use of coal, activists have vowed to end coal exports — in this case by stopping new U.S. export terminals.

Washington’s Department of Ecology (DOE) has joined the fight.

In August, DOE officials announced their review of the proposed Gateway Terminal will include the environmental impact of burning coal in China. The U.S. Army Corps of Engineers declined calls from activists and others to expand its review beyond our national borders because federal law doesn’t allow it.

But DOE says it has the authority to do what federal officials cannot. In fact, the agency says it can do anything that’s not specifically prohibited by law.

The agency maintains its goal is a “fair, objective and rigorous environmental review.” DOE will review the impact of carbon dioxide when coal shipped from Washington is burned in China and analyze the environmental impact of the trains carrying the coal from Montana and Wyoming. In addition, DOE says it will assess the impact of additional shipping traffic on the high seas.

Will DOE consider whether the coal is used in China’s newer low-emission plants or older facilities? We have no idea. Can Ecology even get that information? Probably not, because it’s unlikely the Chinese government will recognize DOE’s jurisdiction. Will DOE assess the environmental impact if China can’t get our low-sulfur coal and burns dirtier coal instead? We don’t know.

Washington’s State Environmental Policy Act was created to keep politics out of environmental policy by establishing clear rules for environmental evaluations that emphasize technical standards. But what standard is Ecology using? We don’t know yet.

Agency officials say they’re still “working with [their] consultant” on how they will assess the impact of carbon dioxide — and because each case is unique, the factors they analyze will differ from one project to the next.

If that’s so, how can the designers of Gateway — or any project — know how to comply when the government agency conducting the review can’t say what it will analyze or how it will decide?

Kafka couldn’t have designed this any better.

Like the shadowy jurists ruling on the unstated crime of Kafka’s hapless defendant, the Inslee administration has already agreed on a verdict — they’re just writing a law that justifies their decision.

If Ecology’s position is allowed to stand, the potential economic harm is incalculable.

Will Ecology analyze the impact of train traffic on every product shipped by rail in Washington? They might. Could Ecology assess the global environmental impact of jet travel when reviewing a proposed Boeing assembly plant? Apparently, they could.

In the midst of massive changes in health care, a sluggish economy and touchy world politics, employers need certainty now more than ever.

But how can employers be certain of anything if state agencies get to make up the rules as they go along?

(Don Brunell is the president of the Association of Washington Business.)