Wyoming and Montana are looking to the U.S. Supreme Court to intervene over Washington's decision on the Millennium Bulk Terminal. The states announced today they have filed a joint motion to challenge what they call "Washington State's unconstitutional discrimination against a proposed coal export terminal."
"Right now, we believe this is our sole remedy," said Wyoming's Attorney General Bridget Hill.
In 2017, the Washington Department of Ecology denied a water quality permit with prejudice due to the project's potential harm to the Columbia River and surrounding environment, according to its website. The addition of that language, "with prejudice," meant the project could not reapply to build or operate the same proposal. The move effectively killed the project which was been in the works since 2012.
The Millennium Bulk Terminal was initially proposed to be the largest coal export terminal on the West Coast, seeking to ship about 44 million metric tons of coal per year.
Wyoming and Montana felt Washington State used the water quality permit as a means to end the project.
"This permit was denied based on non-water quality concerns," said Governor Mark Gordon in a press conference. "The state just didn't want the project to export commodities from the interior West and was willing to use any tactic it could find to make sure of it."
In the states' motion to the Supreme Court, the two Attorneys General argued the denial of the water quality certification violates both the dormant commerce clause and the foreign commerce clause of the U.S. Constitution.
"This case implicates an important purpose of the Commerce Clause: prohibiting coastal states from blocking landlocked states from accessing ports based on the coastal states' economic protectionism, political machinations, and extraterritorial environmental objectives," reads the filing.
In 2018, the U.S. District Court in Tacoma sided with the Washington Department of Ecology and dismissed claims that the water quality permit detail was pre-empted by two federal laws. In 2019, the same court ruled in favor of the Department to dismiss claims relating to the foreign Commerce Clause. Millennium's parent company Lighthouse Resources filed an appeal last May to the Ninth Circuit Court of Appeals which is still underway.
The Wyoming and Montana joint filing goes on to say Washington's discrimination has severe impacts to Wyoming and Montana. It says, while domestic coal production has declined, foreign markets are booming.
"Plaintiffs the State of Montana and the State of Wyoming are sovereign States losing significant coal severance taxes because of Washington State's discriminatory conduct," the filing reads. "Wyoming and Montana depend on taxes from coal production to fund critical state and local infrastructure and programs."
Wyoming Attorney General Bridget Hill said if the Supreme Court chooses not to take up the action, Wyoming would have to look at other remedies.
In response to whether the Washington Department's decision was political, spokesman Jeff Zenk said simply, "Absolutely not."
Zenk said the department ran a rigorous process in accordance with environmental law and that it was rightfully denied because it failed water quality and environmental standards.
"Those impacts would require driving 537 pilings into the riverbed, destroy 24 acres of wetlands, eliminate five acres of aquatic habitat, increase ship traffic on the Columbia River by 1680 trips a year and also impair tribal access to protected fishing sites," he said.
Zenk said an independent appeals board upheld the denial and that this filing doesn't raise any new issues.
"I don't know how this project is going to move forward when they literally don't have a piling to stand on," Zenk said. "They've pretty much been defeated at every turn in the courts on their challenges."
Sam Kalen, law professor at the University of Wyoming, said the court has the ability to decide whether it will accept the case.
"The nature of this case involving the Dormant Commerce Clause and how it has treated other interstate disputes outside of the water cases makes this unlikely, albeit possible, case for the Court to accept.
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