Or, The Fine Art of Political Ass Coverage
The Washington State Liquor Control Board on Tuesday announced what could be the first in a series of postponements and delays of their rule-making schedule for the implementation of limited marijuana legalization measure I-502.
“While described as business as usual in a carefully crafted press release from the Board, the new delay reflects a botched administrative procedure and a defective environmental review under the State Environmental Policy Act,” Steve Sarich of the Cannabis Action Coalition told Toke Signals Tuesday afternoon.
This comes as no surprise to I-502 critics such as Arthur West, an attorney associated with the CAC who filed a Superior Court action in Thurston County on July 26 to contest the July 3 rules and accompanying State Environmental Policy Act (SEPA) determination of “non-significance” that was apparently issued after the rules were finalized.
“Under the current schedule, the Board was expected to adopt the final rules at its regularly scheduled Board meeting tomorrow,” the Board stated in a Tuesday press release. “Should the Board accept staff’s recommendation, staff will come back to the Board on September 4, 2013, with revised proposed rules.”
In announcing its intention to recommend that the Board refile the rules to implement I-502, the Board announced its “staff received sufficient input to warrant re-filing the proposed rules” since filing the proposed rules on July 3.
“Last week, the Board held five public hearings across the state to solicit input,” the press release states. “Under the state Administrative Procedures Act, an agency must re-file proposed rules if there are any substantive changes.”
“Should the Board accept the proposed rules on September 4, staff will immediately file a new CR 102 (proposed rulemaking) with the Code Reviser’s office and begin a six week schedule of collecting public input and holding at least one public hearing,” the press release states. “The agency’s published timeline will be adjusted to reflect the new schedule.”
The WSLCB said it remained on schedule to meet the I-502 required deadline of having rules in place by December 1.
Key elements of the rules that will be included in the revised proposed rules include limiting the amount of total marijuana production; identifying the number and whereabouts of retail locations per county; identifying the total amount of cannabis that a licensee may have on hand; and “further clarifying certain definitions and other revisions.”
“The process is working exactly as it should,” claimed agency director Rick Garza, who may well be losing his job if heads have to roll (and I’m not talking joints) before this contretemps is over. “Potential licensees, local governments, law enforcement the general public all deserve clarity and certainty in the rules,” Garza said.
“Our stakeholders are not telling us to hurry up,” Garza claimed. “In fact, they are asking us to consider their comments for the proposed rules. Their input now will only help strengthen and improve the rules that will govern Washington’s system of legal marijuana.
Did the LCB Simply Forget to File an Environmental Impact Statement?
Judging by the appearance of things, it seems distinctly possible — nay, probable — that the WSLCB clean forgot to file an Environmental Impact Statement for the proposed rules. If that’s so, Tuesday’s press release represents an elaborate attempt at ass coverage.
At the WSLCB’s public hearings, critics argued that there simply isn’t any way the Board could determine that the proposed I-502 rules have “no potential for significant impacts,” especially with more than 50 cities and counties having declared “emergencies” and adopting moratoriums or interim zoning measures due to I-502. Cities and counties assailed the Board’s lack of SEPA compliance and failure to address land use and adverse impact concerns.
The failure of the Board to address the foreseeable adverse impact of federal action to seize state and private assets if I-502 were implemented was also criticized at the public hearings, according to the CAC.
The Liquor Control Board’s own records were cited to demonstrate that the Board’s environmental review was cursory, and postdated the actual rules themselves, a clear violation of the procedural requirements of SEPA.
“Significantly, it was not until a petition to revoke the rules for noncompliance with SEPA was filed on July 11 that the Board even issued a determination of non-significance on July 12,” Sarich pointed out. “How long will it take the Liquor Control Board to comply with the State Environmental Policy Act?”
That’s still unknown, because to actually follow the Act, the Board would have to conduct a scoping process to make a threshold determination, according to Sarich, then issue either a DS (Determination of Significance), MDNS (Mitigated Determination of Significance), or DNS (Determination of Non-Significance), and possibly conduct an Environmental assessment or a full EIS (Environmental Impact Statement), according to Sarich.
LCB is Now On its Own
A full EIS for the new amended rules could take as long as two years, Sarich said, and complicating the matter is the fact that Dr. Mark Kleiman and the rest of BOTEC Analyses Corporation, the WSLCB’s “marijuana consultants,” are no longer assisting the Board, having completed their contract, “taken all their money and split June 30th,” according to Sarich.
“Without Botec to advise them, the LCB could be in for a long row to hoe in the adoption of new rules and their attempt to comply with the requirements of the State Environmental Policy Act,” Sarich told us.
One of the LCB’s biggest concerns at this point, according to Sarich, should be lawsuits from potential marijuana licensees who have leased property and made major capital investments, based on the Board completing their licensing process by this December.
“If this fails to happen, they can sue the LCB for negligence for failing to file a proper SEPA list and do an Environmental Impact Statement, stopping the implementation of I-502,” Sarich said.
Just today (August 13), a group of well-to-do investors reportedly leased three huge warehouses in Olympia for I-502 grow operations. Expect the legal fur to fly if those licenses aren’t awarded by January.
Rumor has it that a home-growing amendment will be introduced in the Legislature in January. If the rules still aren’t in place by then, that would make yet more things the LCB will have to consider in their byzantine rules process — so that couldn’t take place for 90 days following the time any new laws impacting I-502 are passed.
If, however, things go according to schedule, here’s how that will happen, according to the LCB:
Revised Proposed Rulemaking Schedule
· September 4, 2013 File Supplemental CR 102 with revised proposed rules
· October 9, 2013 Public Hearing (Location TBD)
· October 16, 2013 Board Adoption (CR 103)
· November 16, 2013 Rules become effective
· Nov. 18 – Dec. 18, 2013 WSLCB accepts applications (30-day window)
The Board will hear staff’s recommendation at its regularly scheduled Board meeting at 10 a.m. on Wednesday, August 14. The address is 3000 Pacific Avenue in Olympia.
For more information on the implementation of I-502, including fact sheets, FAQs, a revised timeline, and an opportunity to sign up for email alerts, please visit the WSLCB website at www.liq.wa.gov.