Wash. export hub becomes national flashpoint

Source: Dylan Brown, E&E News reporter • Posted: Thursday, March 14, 2019

Meat, milk jugs and the Green New Deal have become fuel for the feud between red and blue states over the Northwest’s last hope for exporting coal.

The Millennium Bulk Terminals, a 44-million-ton coal export terminal proposed at a former aluminum smelter site on the banks of the Columbia River in Longview, Wash., has divided states that extract natural resources and the coastal states that are the gatekeepers to exporting those resources to energy-hungry Asia.

Thirteen state attorneys general have picked sides in a lawsuit coal company Lighthouse Resources Inc. filed against the administration of Washington Gov. Jay Inslee, a Democratic presidential hopeful. In 2017, the Washington State Department of Ecology denied a Clean Water Act certification for the proposed export terminal.

Lighthouse quickly sued, joined by BNSF Railway Co., the railroad that would bring in coal from Wyoming and Montana for export, mostly to Asia. The coal and rail companies alleged that the permit rejection violated the U.S. Constitution’s Commerce Clause, which protects trade across state lines.

Coastal states argue they have the right to prevent environmental damage within their borders, but landlocked states believe Inslee’s decision was motivated by his climate activist politics, costing their states valuable tax revenue to fund education and other public projects.

In a friend of the court brief, filed by attorneys general from self-described “flyover states” — Wyoming, Kansas, Nebraska, North Dakota, South Dakota, Utah and Oklahoma — condemned “economic discrimination” by “coastal” politicians like Inslee, whose presidential campaign has a goal of “100 percent clean energy.”

“Coal has no place in Governor Inslee’s view of the world, and it stands directly in the path of his political aspirations,” they wrote.

Inslee’s administration maintained the Millennium decision was based on likely environmental impacts, not politics (Greenwire, Aug. 20, 2018).

Meanwhile, states attorneys general from California, Maryland, Massachusetts, New Jersey, New York and Oregon said the lawsuit is an attack on states’ rights and the Clean Water Act’s cooperative federalism model.

“Washington is neither prohibiting Lighthouse from selling coal in Asia nor forbidding foreign nations from purchasing Lighthouse’s coal,” their amicus brief said.

“Rather, Washington is merely prohibiting the construction of a specific proposed industrial facility at a particular site because the proposed facility will create significant local pollution.”

‘Let the chips fall’

The blue states cited a 1981 Supreme Court decision upholding a Minnesota ban on plastic milk jugs to reduce waste, even though out-of-state milk producers said it hurt their businesses.

Because Washington lacks a coal industry, no in-state company received an advantage over outside competitors, they said.

“Even if Plaintiffs could show that Washington was motivated by an opposition to coal (which, after extensive discovery, they cannot), their discrimination claims would still fail,” the coastal attorneys said.

They called for the case to be dismissed on summary judgment — something U.S. District Court Judge Robert Bryan of the Western District of Washington already did with another argument in the case (E&E News PM, Dec. 11, 2018).

But the states fighting on behalf of the export terminal argued that Lighthouse has evidence of political motives.

“Allow Lighthouse and BNSF to make their case at trial,” their brief said, “and let the chips fall where they may.”

Washington may lack coal extraction, but Republican attorneys general argued that denying the terminal its permit ultimately benefitted other sources of electricity, which supported Inslee’s stated “clean energy” goal.

“Viewed in that light, the discrimination by the Washington State officials is certainly protectionist,” they wrote. “The fact that the parties disagree on such a fundamental point confirms the need for a trial.”

Attorneys for the landlocked states said they worry Inslee isn’t alone, pointing to “a vocal representative of one of the coastal states” calling for “100 percent renewable energy by 2030” and “an end to air travel.” The Green New Deal from Rep. Alexandria Ocasio-Cortez (D-N.Y.) — a vocal coastal lawmaker — proposed the first action, but not the second.

“How long will it be until a coastal state or a coalition of coastal states like the one in this case form an economic blockade based on another cause celebre, like banning genetically-modified grain? Or non-organic food? Or meat?” the Republican brief asked.

Environmentalists closely following the case scoffed at the slippery slope argument.

“They’re like the Lorax,” Earthjustice attorney Jan Hasselman said, “except for hamburgers.”