October 6, 2020 - A lawsuit filed by Wyoming against the state of Washington over a blocked coal export terminal may still have a chance in court.

In the latest development in the proceeding, the U.S. Supreme Court invited the acting solicitor general to file a brief to express the position of the federal government on the case. The lawsuit alleges the state of Washington unconstitutionally stopped the development of a proposed coal export terminal that could have helped transport Wyoming coal to global markets.

Gordon called the latest court order “encouraging,” saying it signaled that the case still had a chance to be heard.

A train transports coal in 2017 from a mine south of Gillette. A lawsuit filed by Wyoming against the state of Washington over a blocked coal export terminal may still have a fighting chance in court.

Photo: Star-Tribune

In January, the governor joined Montana in asking the U.S. Supreme Court for a hearing on the dispute between the coal-producing states and Washington. The export terminal proposed for the West Coast would have allowed Montana and Wyoming to export more Powder River Basin coal to other countries during a time when domestic demand for the commodity wanes. If the project is completed, it would be the largest coal export terminal in North America. The two landlocked states argue Washington violated the Dormant Commerce Clause and Foreign Commerce Closure of the U.S. Constitution by inhibiting the export of a commodity.

“This issue is extremely important to Wyoming and Montana, and it appears members of the Supreme Court recognize the significant Constitutional issue of one State’s actions preventing another State from shipping a product, in this case coal, to willing markets,” Gordon said in a statement. “It is an issue as old as our country. We believe it is logical and appropriate that the Court should seek input from the Solicitor General before deciding such an important question.”

The effort to bring the Millennium Bulk Terminal along the Columbia River to fruition has hit several major hurdles.

In 2017, the Washington Department of Ecology declined to extend a necessary water certification under the Clean Water Act due to what it identified as “unavoidable and significant adverse environmental impacts from the construction and operation of the proposed terminal,” according to court documents. After the company appealed, the state’s Pollution Control Hearings Board upheld the department’s decision.

To Wyoming and Montana, this specific certification was denied “with prejudice,” on political grounds instead of environmental grounds, according to court documents.

In addition, the Washington Department of Natural Resources denied the company the ability to sublease state-owned aquatic land where part of the proposed facility would be built. What’s more, the county also voted not to grant conditional use and development permits to the company. Though a hearings board and Washington Court of Appeals affirmed the county’s decision, a petition to review the decision, filed by the company this year, is pending in the Washington Supreme Court.

Wyoming and Montana filed the original motion in the U.S. Supreme Court, bypassing lower courts and asking the highest court to accept an original action against the state of Washington. Gordon explained the state would be working alongside Montana to “educate the Solicitor General about this case in the near future.”

The Supreme Court must then decide if it will accept the case. If it does, the case will likely go through pretrial proceedings.