June 7, 2019 - Wyoming Governor Mark Gordon asked Attorney General Bridget Hill to research how Wyoming could sue Washington over that state’s decision to deny a coal port permit over environmental concerns, the governor said last week.

“We are considering whether what’s called an original act or original lawsuit is advisable,” Gordon told WyoFile in an interview Friday.

Gordon described legal action that could result in a clash “state to state in front of the [U.S.] Supreme Court,” but said for now that he’d asked Hill to draw up a legal strategy. Wyoming could join with other states to sue Washington for violating a prohibition in the U.S. Constitution against a state regulating another states’ trade, Gordon said.

“I’ve asked the attorney general to provide me with a strategy on that matter both from the point of view of if Wyoming were to go alone or preferably if Wyoming would, with other states, do such an action,” Gordon said.

Hill declined to comment on the matter, saying that any such strategy research would be bound by attorney-client privilege.

To date, Wyoming has limited its legal action against the Pacific-coast state to supportive legal briefs in a lawsuit brought by coal and railroad interests. That lawsuit hit a snag recently after a federal judge stayed the federal case until state-level court cases over the proposed port are resolved.

The stay, Gordon said, “is just another long delay in the process.”

In Sept. 2017, the Washington Department of Ecology denied permit applications to build the Millennium Bulk Terminal in Longview, Washington. The regulators cited threats from coal shipments to air and water quality and tribal natural resource rights, among other concerns. Millennium Bulk is owned by Lighthouse Resources, which also owns coal mines in Wyoming.

Gordon believes Washington regulators improperly used their authority to block coal exports because of popular and political animus against the carbon-heavy fuel in that state.

“They’re using the Clean Water Act and their Department of Ecology to block export of coal and they’re doing it unabashedly,” Gordon said. “They’re using these environmental regulations ill-advisedly for things that are not appropriate for the regulation.”

Gordon argued he supported a state’s right to regulate its own water, but that Washington had overstepped its bounds in this case. “States should have every opportunity to use the tools they need to protect their environment,” he said. “In this particular case, you’re really running afoul of the interstate commerce clause.” The commerce clause in the U.S. Constitution authorizes the federal government – not states – to regulate interstate commerce.

In March, Gordon vetoed a bill that would have let the Legislature take steps to file its own lawsuit against Washington. In his veto message, Gordon said the bill could confuse a future judge about what the state’s intentions were if two separate branches of government were pursuing litigation, and he questioned the Legislature’s authority to pursue a lawsuit.

In the March 15 letter, Gordon suggested he would sue if need be. “I will be tireless in exercising every legal option to assert Wyoming’s access to markets worldwide,” he wrote. The Legislature adjourned before Gordon’s veto and did not attempt to override him.

Gordon has spoken with legislative leaders about his efforts with the AG, he said, and has their support. “One of the reasons I did the veto is I said that will be working in lockstep on this,” he said.

Gray was pleased the AG would pursue a legal strategy but still believes it’s “unfortunate” Gordon vetoed his bill, Gray wrote in an emailed statement on Monday afternoon.

“With the stay in the Lighthouse case for procedural weaknesses that a state to state lawsuit does not have,” Gray wrote, “Wyoming needs to have options to pursue a state to state lawsuit. The Attorney General has this ability so it is good that they are pursuing that. But the legislature should have that ability as well.”