Irony Alert: Washington State's fundamental environmental law is being used to block the construction of the State's most sustainable building
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This year, the Bullitt Foundation planned to construct the Cascadia Center for Sustainable Design in Seattle's Central District, designed to be the world’s most efficient office building built to date, and the nation’s first mid-rise commercial building to achieve “Living Building” certification. "Living Building" certification requires the Cascadia Center to achieve 20 benchmarks, including the on-site production of 100% of the building's energy and water needs (100% is not a typo). The center would also be evaluated after one year of the building's operation (a response to the criticism that LEED-certified buildings fail to perform to green design standards over time). Ultimately, the Bullitt Foundation envisioned developing the Cascadia Center to be a local and national model for innovative sustainable development. However, the Cascadia Center is quickly becoming a model that demonstrates the barriers to innovative sustainable development in Washington State.
Recently, a nearby building owner filed an administrative appeal challenging the Cascadia Center because the project’s developer did not prepare an Environment Impact Statement ("EIS") under the State Environmental Policy Act (Chapter 43.21C RCW, "SEPA"). The building owner (whose building's views would be blocked) argues that an EIS is required because of the purported environmental impacts by the departures to the land use code provided in the City’s design review process and provided in the City’s Living Building Pilot Ordinance (now codified at SMC 23.40.060). The departures were needed to design the building to meet Living Building certification standards. Because of the building owner's collateral attack, the project is now stalled in litigation for the foreseeable future.
Ironically, one of the largest barriers to innovative sustainable development is the State Environmental Policy Act, a law originally intended to be a protective shield for the environment.
Generally, development projects that do not meet a City's SEPA threshold exemptions are subject to the SEPA review process, which may or may not include the preparation of an EIS (which, is costly to prepare and takes many months or even years to complete). As demonstrated by the Cascadia Center, the SEPA review process is vulnerable to legal appeals, providing a tremendous amount of uncertainty for urban development, especially innovative sustainable development that may require departures from established code requirements. Regardless of SEPA's initial environmental intentions, in reality, the SEPA process increases the uncertainty and cost of urban development, providing a disincentive for innovative sustainable development.
To encourage urban development, the Washington Legislature has amended SEPA to dispense qualifying projects from SEPA review at the project level if a non-project EIS has been previously completed at the planning level. This is what many call "upfront SEPA," and several cities in Washington State have effectively used upfront SEPA to encourage urban development. Washington State has authorized several forms of upfront SEPA, including planned actions, optional local infill exemptions (RCW 43.21C.229; WAC 197-11-800(1)), utilization of regulatory requirements in lieu of SEPA review, and RCW 43.21C.420. The City of Seattle did not complete a non-project EIS for the Cascadia Center project area, and, as a result, the Cascadia Center remained vulnerable to SEPA-based appeals.
The Cascadia Center's legal woes demonstrate that sustainable development remains vulnerable to SEPA-based legal challenges. It is likely that sustainable development will remain vulnerable to “environmentally-based” challenges unless cities complete upfront SEPA or SEPA itself is dramatically amended. Until then, sustainable developers should consult with a SEPA attorney to develop a strategic plan to minimize the cost and delay of defending their project should a SEPA-based challenge arise.
Cascadia Center Details:
Project owner: Bullitt Foundation
Project developer: Point32
Architect: Miller Hull
