03  Judicial Fairness Project

What bias looks like 

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The audit flagged 43 indicators across seven categories: procedural manipulation, scope narrowing, standard inflation, burden shifting, credibility suppression, evidence minimization and asymmetrical scrutiny. The pattern matches residents’ experiences: systematic favoritism toward the city and exclusion of exhibit evidence.

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Three top bias examples 

 

1. Procedural manipulation 
 

During the hearing, the examiner admitted the 2025 Whatcom Future Shorelines Report created a “cure path” for web exhibits for the University of Washington Climate Impacts Group data on intensified storms. Yet the final ruling declares the climate science “not admitted” because the studies were not on the appellants’ original exhibit list. This allowed the city to continue using a 77-year-old rain dataset for stormwater modeling; data that predates the frequent atmospheric rivers now flooding Whatcom County almost yearly.

 

2. Scope narrowing 

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The ruling repeatedly narrows what “counts”:

• “Direct federal law is beyond the scope of this permit review.” (Ruling, p.6)

• “Jurisdiction is limited to applying city adopted standards.” (Ruling, p.14)

• “That’s a federal compliance issue outside the scope of this review.” (Ruling, p. 17)

 

These statements sideline the Clean Water Act 303 (d) impaired waters and emerging‑pollutants like 6PPD-q. Despite Ecology data, maps and regulations submitted, the ruling claims Appellants “have not established any adverse impacts to 303 (d) waters.”  Here, the examiner uses scope to shrink exactly where SEPA requires a hard look at evidence.

 

3. Standard inflation 
 

The examiner describes the applicant’s record in unusually deferential terms. He calls the applicant’s record “near bullet-proof” (p.2), gives “substantial weight” to the city’s SEPA official (p.4) and states the balance of evidence favors the developer (p.21). Meanwhile, Department of Ecology and Army Corps concerns receive “very little weight” because staff did not appear for cross-examination, while the developer’s paid consultants are elevated over Appellant expert witnesses and scientific exhibits.

 

Deference or structural prejudice?

 

State law requires hearing examiners to give “substantial weight” to the city’s SEPA determination and to overturn it only if the full record is clearly erroneous. The examiner says the city met that standard, relying on applicant consultants and peer review studies combined with procedural rules.

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The ruling appears to show balance. It acknowledges limitations in the city’s and developer’s case, including outdated precipitation data, conflicting aquifer maps and existing detention ponds unlikely to meet current standards. Yet each time, the ruling resolves the dispute in the city’s favor by giving “substantial weight” to the SEPA official, declining to admit climate exhibits on exhibit‑list grounds or treating Clean Water Act issues as “beyond the scope.” 

 

The audit’s 43 indicators show how deference becomes structural prejudice when disputed science and material exhibits never get a full review. This short-circuits the city’s “hard look,” responsibility and legal nexus for any intensified flooding and downstream water-quality degradation in Birch Bay.

 

Why this matters and what you can do
 

The Avista case reveals systemic flaws in Washington’s quasi-judicial land-use system. The same city acts as a dual agency, both developer partner and environmental judge, while examiners are paid by the jurisdictions they review.