Solicitor General Says Wyoming Lacks Reason To Sue Over Coal Port Because of Terminal Bankruptcy

in Mark Gordon

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By Jim Angell, Cowboy State Daily

The U.S. Supreme Court needs to rule on the issue of whether Washington state can use its laws to block a proposed coal export terminal, even though the company proposing the terminal has declared bankruptcy, Gov. Mark Gordon said Wednesday.

Gordon said he was disappointed with a filing by the U.S. Solicitor General in the lawsuit filed by Wyoming and Montana against the state of Washington over its refusal to issue permits for the Millennium Coal Export Terminal.

The Solicitor General argued to the Supreme Court that because Millennium and its parent company have declared bankruptcy, no coal export terminal will be built, so the issue is moot.

But Gordon said the issue of whether Washington can use its laws to block trade by Wyoming must be settled regardless of the status of the terminal.

“The core issue of reaffirming a state’s constitutionally protected access to markets remains unresolved and I urge the Supreme Court to continue with the case,” he said. “One state should not weaponize a water quality statute inappropriately to deny the other states the ability to conduct interstate commerce.”

The filing is the latest in the lawsuit filed by Wyoming and Montana in January over Washington’s rejection of the terminal.

The coal export terminal was seen as a way to provide Wyoming coal with access to overseas markets. It was rejected by Washington state officials under terms of the Clean Water Act.

But Wyoming and Montana argued the move was based instead on political opposition to the use of coal as fuel and that the denial of the terminal’s permits amounted to violating the states’ rights to interstate commerce.

The lawsuit asked that Washington’s order rejecting the port be ruled null and void.

But the Solicitor General’s Tuesday filing argued that since Millennium has given up on the terminal, there is no issue for the Supreme Court to settle.

“Regardless of whether that (permit) denial was unlawful … Millennium will not be building its proposed terminal,” it said. “Accordingly, this suit would not redress Montana and Wyoming’s asserted injury from the denial …”

Gordon said Wyoming and Montana will file a supplemental brief addressing the arguments.

“We will respond to the Solicitor General’s brief to stress the critical importance of the commerce clause, particularly to inland states,” he said.

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