WA Coal Export Terminal Reaches Significant Road Block

Aug 22, 2019

Petition
Credit Citizens Supporting Wyoming Coal

A Washington state appeals court dealt another blow to a controversial coal export terminal. It reaffirms a regulator's decision made back in 2017. Judge Lisa Sutton found the state's Department of Natural Resources (DNR) acted properly in denying the Millennium Bulk Terminal necessary leases to begin development.

In 2012, Millennium introduced a full plan to build the largest coal export terminal on the West Coast and was seeking to ship about 44 million metric tons of coal per year. It hoped to add two large docks to its property in Longview, Washington.

Shortly after, the company sought the sublease in question from Washington's DNR, but the process was held up by a lack of financial transparency from Millennium as well as industry bankruptcies, according to court documents.

In 2017, Millennium's application for a sublease was denied.

"DNR's decision is based on Northwest Alloys' failure to provide requested information regarding the financial condition and business of Millennium as well as other factors that bear on the suitability of Millennium as a subtenant," wrote WA's commissioner of public land back in 2017. Northwest Alloys would be the tenant for Millennium.

Jan Hasselman, an Earthjustice staff attorney whose long been involved in this case, said this project has been dead for years and that this move from the court affirms the original decision.

"The bottom line is that there was a full environmental analysis of this project that showed significant adverse impacts across the state from traffic problems to train congestion problems to interference with tribal fishing," Hasselman said. He added Washington has the right to protect the health, safety and welfare of its citizens.

But the 2017 decision from Washington regulators to deny a sublease rubbed some in Wyoming the wrong way. In March of this year, Wyoming and seven other states filed an amicus brief in support of the terminal "to inform the Court of the real world harms imposed on landlocked states as a result of economic discrimination of coastal states."

Several bills have arisen in Wyoming's state legislature to push back harder on the coastal state's decision to halt further development of the terminal. HB0251, or "Coal Export Terminal Litigation", sponsored by Casper Representative Chuck Gray, sought to sue Washington this year. It made it through both houses before getting vetoed by Governor Mark Gordon this year. He argued a lawsuit would have threatened to introduce a "whole new set of topics" and delay the case. He added he would discuss a coherent approach to litigation with WY's attorney general.

Since then, two coal companies have gone bankrupt in Wyoming: Cloud Peak Energy and Blackjewel LLC. That's helped reignite an interest in developing the terminal. A petition is collecting steam started by the Citizens Supporting Wyoming Coal Oil and Gas.

On July 8, shortly after Blackjewel filed for bankruptcy, Gray spoke at a Gillette library to recently furloughed coal miners. He said export markets would help support Wyoming's businesses.

"I think it would replace 60 to 70 percent of the demand that was lost with the actions of the Obama administration. That is really a role of state government," Gray said.

To this court decision, Gray said it's just a procedural setback. A state-to-state lawsuit would still have a good shot of changing the trajectory of the Millennium Bulk Terminal.

"One of the procedural advantages that a state-to-state lawsuit has is the original jurisdiction granted to the Supreme Court for these situations in Article III, Section II of the Constitution. Therefore, a state-to-state lawsuit would be much more likely to be heard by the Supreme Court-where it has a better chance of success-as opposed to the current case," Gray said.

Earthjustice's Hasselman said oral arguments in the state-to-state lawsuit will continue next month focused on Washington's Department of Ecology.

This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Boise State Public Radio in Idaho, KUER in Salt Lake City, KUNR in Nevada, and KRCC and KUNC in Colorado.