By Camille Erickson

January 26, 2021 - The Trump administration left office before weighing in on a lawsuit filed by Wyoming and Montana over a blocked coal export terminal, further dimming the states’ hope to ship coal from the West Coast.

Wyoming’s attorney general filed the original action in the U.S. Supreme Court in January 2020. The lawsuit alleged the state of Washington unconstitutionally stopped the development of a proposed coal export terminal, thereby inhibiting the landlocked states from shipping their coal to global markets.

Back in October, Wyoming’s governor announced the Supreme Court had asked the Trump administration’s Department of Justice to file an opinion on the case, a sign some justices may be interested in considering it.

But the acting solicitor general left before following through. According to the U.S. Supreme Court docket, no opinion has been filed. S&P Global Market Intelligence first reported on the absence of an opinion.

The lack of comment from the Trump administration caught Wyoming political leaders off guard, with many considering it a setback for the state’s fight to export coal.

“We were disappointed that the solicitor general didn’t finish or do his report before he left office,” said Randall Luthi, Gov. Mark Gordon’s chief energy adviser. “But our position is unchanged.”

“If it was a violation of the Commerce Clause on Jan. 19, it’s still a violation of the Commerce Clause on Jan. 21,” Luthi noted, referencing the days before and after President Joe Biden’s inauguration.

In the lawsuit, Wyoming and Montana argued the state of Washington violated the commerce clause and foreign commerce clause of the U.S. Constitution by inhibiting the export of a commodity.

Comments from the Office of the Solicitor General in the Department of Justice often carry significant weight in a case before the country’s highest court, according to Joshua Macey, a University of Chicago law professor. The Biden administration could still write a brief, but it may not be in Wyoming’s favor.

“What this means is that probably the most influential litigator in the country, from the Supreme Court’s perspective, is now going to come out on the other side of this issue,” Macey said of the solicitor general’s opinion under Biden.

Still, Wyoming’s lawsuit over the blocked coal export terminal could have a chance in court.

“The fact that the solicitor general did not weigh in is not helpful to the Wyoming and Montana side on this,” explained Alexandra Klass, a professor specializing in energy, environment and natural resources law at the University of Minnesota. “But that does not necessarily mean that the court won’t take the case.”

“Certainly, the fact that they asked for input (from the solicitor general) means that at least certain justices on the court had interest in the case,” Klass added.

One question facing the Supreme Court includes whether it is the appropriate venue to consider the original action filed by Wyoming and Montana, Klass noted.

A similar case between the project’s parent company, Lighthouse Resources Inc., and the state of Washington over the coal export terminal is still ongoing. The court will need to consider if the issues brought forward by Wyoming could be appropriately raised in that case instead, Klass said.

Last week’s news followed a string of setbacks for Wyoming’s dream coal port, known as the Millennium Bulk Terminals. In December, Lighthouse Resources, filed for bankruptcy. It has yet to find a buyer willing to take on the terminal.

The coal port would have given Montana and Wyoming the ability to export massive amounts of Powder River Basin coal to other countries during a time when domestic demand for the commodity is falling. The Powder River Basin, a region of intensive coal mining stretching from Wyoming into Montana, produces about 40% of the country’s coal.

But Washington state public officials have said building an export terminal on the coast would come with steep environmental costs to surrounding communities’ air, water and land.

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, Washington’s Pollution Control Hearings Board upheld the department’s decision.

To Wyoming and Montana, this specific water quality 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. A hearings board and Washington Court of Appeals affirmed the county’s decision. The list of regulatory roadblocks and litigation over the terminal goes on.

If the project had been completed, it would have become the largest coal export terminal in North America.