The U.S. Supreme Court has invited the acting Solicitor General Jeff Wall to file a brief expressing the views of the federal government on a case involving Wyoming and its efforts to export coal internationally.
On Jan. 24, Montana and Wyoming filed a motion requesting the Supreme Court consider claims that Washington unconstitutionally blocked access to coal shipments. The two states are seeking the construction of the Millennium Bulk Terminal.
At the time, Gov. Mark Gordon said in a statement, "I did not come to this decision lightly, but Wyoming's ability to export one of our greatest natural resources is being blocked unlawfully."
After several briefs, the Supreme Court has officially responded in what Gordon said is a positive step. "This means that the case has not been dismissed. And that is very encouraging because we know that it still can be considered," Gordon said at a press conference on Monday.
Earlier this year, Wyoming and Montana argued the state of Washington's denial of a water quality certification under Section 401 of the Clean Water Act for the Millennium Bulk Terminal was based on favoritism of Washington products, the governor's political opposition to coal and "perceived extra-territorial environmental impacts of coal combustion." They argued the action violates the Dormant Commerce Clause and Foreign Commerce Clause.
The state of Washington made several arguments in a brief encouraging the highest court to reject the challenge, including that the denial was made for environmental reasons.
It also argued that there are other forums below the Supreme Court that could handle the case and that there's already unused coal export capacity at existing west coast ports.
Gordon said he believes the case has been well-stated and that "the obvious matter of Washington state discriminating against Wyoming coal can be brought to a full discussion and we will prevail, we hope."
Casper representative Chuck Gray has advocated for exporting coal in the past. He said he's encouraged by the news: "It shows that the strategy of initiating an original jurisdiction litigation, which the legislature advocated with HB251, is working."
He added Wyoming and Montana will discuss next steps.
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