Northwest Gas Ass'n v. Utilities & Transp.
| Decision Date | 02 October 2007 |
| Docket Number | No. 36057-8-II.,36057-8-II. |
| Citation | 168 P.3d 443,141 Wn. App. 98 |
| Court | Washington Court of Appeals |
| Parties | NORTHWEST GAS ASSOCIATION, Olympic Pipe Line Company, Chevron Pipe Line Company, Northwest Terminaling Company, Yellowstone Pipe Line Company, Conocophillips Pipe Line Company, BP West Coast Products LLC, Intalco Aluminum Corporation, McChord Pipeline Company, Terasen Pipelines (Puget Sound) Corporation, Valero L.P., Portland General Electric, B-R Pipeline Company, and KB Pipeline Company, Appellants, v. WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION, Respondent, Bellingham Herald and Allied Daily Newspapers, Intervenors. |
Donald Jeffrey Courser, Attorney at Law, Vancouver, WA, Vanessa Soriano Power, Stoel Rives LLP, Seattle, WA, Timothy Laurence McMahan, Stoel Rives Law Firm, William J. Lehman, Attorney at Law, Portland, OR, Michael Alan Nesteroff, Lane Powell PC, Arthur Washington Harrigan Jr., Danielson Harrigan Leyh & Tollefson LLP, Christopher Thomas Wion, DHLT LLP, Stephen J. Tan, Cascadia Law Group, Seattle, WA, Jennifer Tanya Barnett, Cascadia Law Group, Olympia, WA, Jason Thomas Kuzma, Sheree Strom Carson, Perkins Coie LLP, Bellevue, WA, for Appellants.
Robert Daniel Cedarbaum, Office of Atty. Gen., Olympia, for Respondent.
Shelley Marie Hall, Stokes Lawrence, Seattle, WA, for Respondent and Intervenors.
Harold Malkin, Yarmuth Wilsdon Calfo PLLC, Jordan Gross, Yarmuth Wilsdon Calfo PLLC, Seattle, WA, for Amicus Curiae on behalf of the American Petroleum Institute.
Signe H. Brunstad, University of Washington School of Law, William H. Gates Hall, Seattle, WA, for Amicus Curiae on behalf of Washington Coalition for Open Government.
¶ 1 Plaintiffs Northwest Gas Association, Olympic Pipe Line Company, Chevron Pipe Line Company, Northwest Terminaling Company, BP West Coast Products LLC, McChord Pipeline Company, Intalco Aluminum Corporation, Yellowstone Pipe Line Company, ConocoPhillips Pipe Line Company, Terasen Pipelines (Puget Sound) Corporation, Valero LP, Portland General Electric, B-R Pipeline Company, and KB Pipeline Company (collectively, "the Pipelines") appeal the Thurston County Superior Court's (1) denial of their request for a preliminary injunction; and (2) the court's order, based on the Public Records Act, chapter 42.56 RCW, that the Washington Utilities and Transportation Commission (WUTC) disclose to Intervenor Newspapers and a private individual highly detailed gas pipeline structural and location information and underlying data ("shapefile" data) that the law required the Pipelines to file with the WUTC.
¶ 2 Asserting that this shapefile data is exempt under Washington's Public Records Act, the Pipelines argue that (1) they met their burden of proof for a preliminary injunction, including showing a likelihood of success at a permanent injunction trial on the merits; (2) equitable interests favor granting a preliminary injunction; (3) the WUTC's release of this highly detailed "shapefile" data will make their pipeline facilities vulnerable to sabotage and, thus, will pose a significant threat to public safety and security; (4) the trial court applied the wrong standard to the preliminary injunction hearing, essentially consolidating it with a permanent injunction hearing without prior notice to the parties, in violation of CR 65; and (5) the trial court thus erred in ruling prematurely that the Pipelines had failed to show that the requested shapefile data met Public Records Act exemption requirements without first according the Pipelines their "day in court" to prove their case.
¶ 3 Holding that the trial court erred as a matter of law in denying the Pipelines' request for a preliminary injunction and in ordering the WUTC to disclose the shapefile data before holding a trial on the merits, we reverse and remand for a trial on the merits of the Pipelines' request for a permanent injunction.
¶ 4 In 1979, the United States Congress enacted the Hazardous Liquids Pipeline Safety Act, modeled after the Natural Gas Pipeline Act of 1968. In 1992, Congress modified this 1979 act, unified it with the Natural Gas Pipeline Act, and renamed it the Federal Pipeline Safety Act. 49 U.S.C. Chapter 601.
¶ 5 The purpose of the Federal Pipeline Safety Act is "to provide adequate protection against risks to life and property posed by pipeline transportation and pipeline facilities." 49 U.S.C. § 60102(a)(1). To accomplish this purpose, the Federal Pipeline Safety Act establishes minimum safety standards. 49 U.S.C. §§ 60101-60137.
¶ 6 In addition, the Federal Department of Transportation (Federal DOT) National Pipeline Mapping Program includes a National Pipeline Mapping System — a publicly-available web-based tool1 that (1) identifies the general location of gas and hazardous liquid pipelines throughout the United States; (2) provides gas and other pipeline location data down to street-level, showing nearby streets on a 1:24,000 scale and the applicable zip codes for the pipelines' locations; (3) identifies each pipeline operator by pipeline; and (4) identifies what material each pipeline transports.
¶ 7 Section 60104(c) of the Federal Pipeline Safety Act is a federal preemption clause for interstate pipelines. This preemption clause expressly provides that a "state authority may not adopt or continue in force safety standards for interstate pipeline facilities or interstate pipeline transportation." (Emphasis added.) Nonetheless, the Federal Pipeline Safety Act allows states to adopt more stringent safety standards for intrastate pipeline facilities and intrastate pipeline transportation if they receive certification under 49 U.S.C. § 60105(a) from the Federal Office of Pipeline Safety and the Federal DOT. 49 U.S.C. § 60104(c). Under this section, the Federal DOT has certified the Washington Utilities and Transportation Commission (WUTC) to regulate intrastate pipeline operators and facilities in the State of Washington. Olympic Pipe Line Co. v. City of Seattle, 437 F.3d 872, 879 (9th Cir. 2006).
¶ 8 In addition, 49 U.S.C. § 60106(a) authorizes the WUTC to participate in the oversight of interstate pipelines and establishes the WUTC as an agent of the Federal DOT. As an authorized Federal DOT agent, the WUTC has delegated authority to ensure Washington pipeline compliance with federal safety standards. 49 U.S.C. § 60117(c).
¶ 9 In 1999, a natural gas pipeline exploded near Bellingham, killing a fisherman and two children playing in a nearby creek. In response to community outcry, the Washington State Legislature passed the Washington Pipeline Safety Act to "protect the health and safety of the citizens of the state of Washington and the quality of the state's environment." RCW 81.88.005. This Act generally requires promulgation of guidelines, which parallel the federal pipeline safety guidelines.
¶ 10 Washington's Pipeline Safety Act requires "hazardous liquid pipeline companies, and gas pipeline companies with interstate pipelines, gas transmission pipelines, or gas pipelines operating over two hundred fifty pounds per square inch gauge, to provide accurate maps of their pipeline to specifications developed by the [WUTC]." RCW 81.88.080 (emphasis added). Washington's Pipeline Safety Act also requires the WUTC to provide this pipeline map information to the One-Call System — a state program instructing residents to call a designated telephone number before excavation or digging to determine if their plans will interfere with underground utilities. RCW 19.122.027. Information that the WUTC provides to the One-Call System must be consistent with the Federal DOT National Pipeline Mapping Program. RCW 81.88.080(2).
¶ 11 To comply with Washington's Pipeline Safety Act and to ensure WUTC information consistency with the National Pipeline Mapping System, the WUTC promulgated agency regulations under WAC 480-75. WAC 480-75-999(1) incorporates "by reference" Title 49 of the federal pipeline safety Code of Federal Regulations. And WAC 480-75-600, for example, requires all affected pipeline companies to provide the WUTC with "maps, drawings, and records . . . of sufficient scale and detail as is necessary to show the size and type of material of all facilities." WAC 480-75-600.
¶ 12 To comply with these safety requirements, the Pipelines provided the WUTC with two tiers of information. The first tier of information, termed "high-level data," comprises general pipeline location information, typically on a 1:24,000 scale. The WUTC currently provides these high-level general-location pipeline maps to the public.2
¶ 13 The second tier of information, termed "attribute-level data," is more detailed and specialized than the first tier of information. This second tier attribute-level data includes "exact geographic positioning system coordinates for the pipelines and terminals, locations and types of metering facilities, taps, mileposts, cathodic protection test sites, and valves, plus information about the diameter of the pipeline, depth, and commodities transported." Br. of Appellant at 8-9. This attribute-level data is electronically embedded in a WUTC "shapefile" — a digital representation of the detailed data, which, when opened with a particular computer program, creates a precise drawing of exact pipeline locations, including underground depth. The WUTC currently provides this shapefile attribute-level data to emergency services "first responders," but it does not provide this shapefile data to the general public.3
¶ 14 In 1972, the people of Washington passed Initiative 276, originally codified as ch. 42.17 RCW and popularly known as the "Public Disclosure Act." Laws of 1973, ch. 1. Its stated policy was
to promote complete disclosure of all information respecting the financing of political...
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