Article by Erik Smith. Published on Friday, April 30, 2011 EST.

Numbers Were Wildly Overstated, But Word Never Got to the Legislature

By Erik Smith

Staff writer/ Washington State Wire

OLYMPIA, April 29.—Not so long ago everyone knew oil was flooding Puget Sound. It was like one Exxon Valdez every two years, but it came one drop at a time. You could read about it in state-agency press releases and newspaper stories. You could hear about it on the TV news and in a slick video produced by the Puget Sound Partnership. Every year the rain washed millions of gallons of oil from roadways and parking lots, and it trickled into the sound and killed the fish.

             Green groups stormed the Legislature and demanded a big new tax on oil refiners. Labor unions and local governments lined up right behind them, and alarmed legislators rushed to sign the bill. They said oil needed to pay its fair share, even if it meant the bill would actually go to every Washington resident who drives a car and buys gasoline. It was the right thing to do. Right?

            Wrong. Turns out the Department of Ecology made embarrassing mistakes in preliminary studies back in 2007 and 2008, wildly overestimating the amount of oil that reaches the sound in stormwater. The biggest environmental cause of the last decade had only a nodding relationship to fact. And when you consider all the political hoopla over the issue, all the frantic lobbying in the hallways of the Capitol, all the angry phone calls and emails that poured into legislators’ offices over the last couple of years – it becomes an astounding story. Ecology started owning up to the problems two years ago, but the Legislature never knew and the debate went on.

            Next week Ecology is due to release the third phase of the “toxics loadings” study it began in 2007. It is expected to show that oil’s contribution to the volume of toxic pollutants in Puget Sound is somewhere between one hundreth and one thousandth of what was estimated four years ago.

            A final phase of the effort, due in June, will detail the relative harm of those pollutants. There oil is expected to take a back seat to PCBs, copper, lead, mercury, and perhaps even a few of the chemicals found in treated sewage.

            Some see it as a triumph of the scientific process. Mistakes were made, people caught them, the studies were corrected, and now rational choices can be considered. “Science is dynamic and course corrections are made,” explains Curt Hart, spokesman for the Department of Ecology.

            But to the relative handful who know what happened, it is a cautionary tale – about a political cause that got so far ahead of the science that it nearly led the Legislature to do something very hinky.

            It all started with an oceanographer who asked a basic question. If so much oil is being dumped into the sound, how come we can’t see it?

            The Case of the Missing Ring

            Lincoln Loehr has an unusual job – he’s an oceanographer on the staff of a law firm. He follows environmental regulation for Seattle’s Stoel Rives – things like water-quality issues, endangered-species listings. One client was the Western States Petroleum Association, which represents the state’s oil refiners. That affiliation might make him suspect if he was writing the studies. But he wasn’t writing them – he was reading them.

            To Loehr, something about those Department of Ecology studies rang a little false. As part of a state-government push to clean up Puget Sound, Ecology had launched a study of the toxic chemicals that wind up in the water. It made headlines in 2007 when it released “Phase 1.” Stormwater was the single biggest source of pollution in Puget Sound, it said, and by far the biggest culprit was oil. Somewhere between 6.3 million and 8 million gallons washed into the sound every year.

            Whether it was the invention of a reporter or an environmental advocate, no one knows for sure, but the Seattle Times in December 2007 was the first to put it in perspective. It noted the Exxon Valdez had spilled 11 million gallons in 1989. So it was a spill like the Exxon Valdez every two years – actually, a little worse.
            The startling factoid was picked up and repeated by the Puget Sound Partnership, the brand-new state agency that had been created to direct cleanup efforts. It cited the Exxon Valdez comparison in a press release on the agency’s new “action agenda” in November 2008.
            Immediately it was repeated by every media outlet in the state.

            But here’s what bothered Loehr. If that much oil was being spilled, how come nobody noticed? Why didn’t you see oil slicks on the water? Why wasn’t there an oily ring around the shore? “I just didn’t see that oil ring around the bathtub, and it’s the kind of thing that would get a lot of press,” he said. “Pictures of oil-soaked birds always made the front page, and I just didn’t see any of that around here.”

            A Valdez and a Half

            The funny thing is that Phase 2 of the study came out the same day as the action agenda, a refinement of the numbers in Phase 1, and if anyone in public-policy circles had looked at it they would have seen that the numbers were even worse. Its estimate more than doubled the volume of “total petroleum hydrocarbons” entering the sound each year, to 15.7 million gallons – almost a Valdez-and-a-half. It might have made for even more dramatic soundbites and headlines. Maybe a bit of doubt, too.

            Ecology explained the difference by saying that the first report relied on land use data from 1992, and the later one relied on data from 2001. The population had increased in the meantime. More land had been paved over. More stormwater was running into the sound. But twice as much?

            It might not have taken an oceanographer to see the problem, just someone with a well-stocked shelf of scientific studies. The 15.7 million gallons was the equivalent of 52,300 metric tons a year. Loehr pulled out a 2003 study from the National Research Council about oil in the sea. That one calculated the total amount of total petroleum hydrocarbons entering all the waters of North America at 51,653 tons a year.

            So there was more oil pollution in Puget Sound than in all the waters of North America? Something had to be wrong.

            A Drastic Revision

            You have to keep something in mind about those initial studies. They weren’t based on new field testing, but rather on previously collected data, and on studies and reports conducted in other areas about runoff and pollution. What mattered was the math. Loehr began raising questions about the numbers with the Department of Ecology. Turned out there were plenty of problems.

             For one thing, the study confused total petroleum hydrocarbons with oil and grease, a broader category that includes naturally occurring substances. That correction alone reduced petroleum pollution by 40 percent. There were other big problems in calculations regarding the permeability of the soil – it assumed too little runoff from forest land and too much from developed areas.

In April 2009 and January 2010, the Department of Ecology issued a pair of “addendums” to the report that might better be described as mea culpas. They revised the figures significantly downward, and acknowledged that elements of the methodology were “fundamentally flawed.” Phase 3 of the report is expected to be substantially more accurate, because it is based on actual sampling and analysis of the waters of the sound. Those numbers have been circulating in scientific circles for months for peer review.

So maybe you can call what happened here a splendid example of the scientific process at work. It’s just that the corrections came after the reports went to the printers and the press releases were sent. But it wasn’t a case of no-harm, no-foul, because of what was playing out in the political world at the same time.

A ‘Science-Based Strategy’

While the scientists were still working on those numbers, people in the policy arena took them and ran with them and made them the basis for an environmental crusade. The Puget Sound Partnership launched the campaign for its “action agenda” in December 2008 with a kickoff attended by every Democratic and environmental worthy in the state. A proud Gov. Christine Gregoire declared: “Today we finally have a science-based results-oriented strategy that will drive Puget Sound cleanup for generations to come.”

If you watch the tape, you also can see the slick video that talks about the Exxon Valdez spill that hits Puget Sound every two years.

In the Legislature the talk became action – a full-court press for a “stormwater bill” that would tax oil refiners to build costly public stormwater drainage systems. It has been through several iterations over the last three years, raising anywhere from $100 million to $200 million annually. The exact taxing mechanism is different each time; sometimes it includes agriculture, sometimes it leaves it out. But justice has always been the argument – make the polluters pay. And the oil industry’s sometimes-nasty public image has never hurt the cause – never mind the fact that the bill would have driven up prices for anyone who buys gasoline.

Last year, environmentalists found 24 sponsors for the bill in the Senate. Had they been able to find one more, the bill likely would have sailed through to the governor’s desk. Gregoire said she was eager to sign it. 

And the case always seemed to start with those scientific Department of Ecology studies.

            No Precision Required

Knowing what we do today about those reports, the claims made three years ago ought to raise anyone’s eyebrows. The basic environmental argument was that the Ecology studies might not be finished, but they were good enough. A typical bit of testimony came from Bruce Wishart of People for Puget Sound, before the House Agriculture and Natural Resources Committee:

            “As you have already heard, stormwater is the most significant source of pollution going into the sound, and petroleum products represent the single most significant pollutant in stormwater.  A recent 2008 study by the Department of Ecology, a study on chemical loading into Puget Sound, has made that abundantly clear.

“Some have asked what is exactly the percentage contribution of petroleum products. The numbers are still being crunched by the Department of Ecology, but we have seen studies in Oregon and California and elsewhere that show 60 to 70 percent by volume of pollutants entering are these oil and grease petroleum products that we are concerned with. So it is a very, very significant problem both in terms of risk and volume of pollutants.”

That’s about as precise as things ever got.

Why Numbers Counted

Actually, the numbers did matter. During two of the last three years, the state Legislature has been hamstrung by initiatives that require two-thirds votes for tax increases. That means Republican votes are required, and Republicans aren’t about to say yes to taxes. So in 2009 and again this year, when the rule applied, advocates have argued that the stormwater tax is actually a “fee.” That requires a much simpler majority vote, but it also requires that there be a relationship between the amount charged and the actual problem.

As long as it looked like oil was the main villain in the piece, the backers might have had an argument, albeit an inexact one. But the massive backtracking by Ecology now makes it look like the oil industry would have been asked to pay most or all of the bill when it bears only a small portion of the responsibility. That makes it a tax, and also grounds for a lawsuit.

            Obviously the oil industry should pay its share for Puget Sound cleanup, said Frank Holmes of the Western States Petroleum Association – but no more than that. “The oil industry shouldn’t have to pay everything,” he said. “Now that we have a more accurate report we can have a better discussion on how better to deal with stormwater.”

It also helps to explain why the stormwater bill got such a tepid reception in the Legislature this year. This year’s version got courtesy hearings in the House and Senate, and then disappeared. It wasn’t that there was any great awareness of the problems with the Ecology studies, but rather that the fee-versus-tax argument seemed a bit weak. There also weren’t as many Democrats in the Senate to put it over. In a year when lawmakers have to cut state spending by $3 billion, they had bigger things to worry about. “There was no will,” said Senate Majority Leader Lisa Brown, D-Spokane.

A Failure to Communicate

The funny thing about the story is that the entire debate in last year’s Legislature played out after the Department of Ecology acknowledged the serious problems with its own studies. Somehow the scientific world never communicated with the political one, and so the bare-knuckle lobbying of 2010 continued until almost the final day of the session. The facts were available the entire time, but the only public exposure they received was a mention in a few paragraphs toward the bottom of a Washington Policy Center  “legislative memo” in February of that year.

These days, though, the word is finally beginning to get around. There was an extensive discussion of the problem at a public forum at the Capitol in March. Josh Baldi, special assistant to the director of the Department of Ecology, said there’s probably a lesson to be learned. “I think one thing that many policymakers, if they don’t know now, they will, is that science very rarely is clear. I mean, if you are waiting for specific numbers to drive policies, such as who should pay, you’re not going to get them.”

And Loehr says what happened in the Legislature was a shame.

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