CHEYENNE – Gov. Mark Gordon announced Tuesday morning that Wyoming has joined Montana in asking the U.S. Supreme Court to hear a challenge to Washington state’s denial of a proposed coal export terminal permit.
The conflict centers on Washington’s permit denials for the Millennium Bulk Terminal, which would sit on the Columbia River in Longview, Washington. In their case, Wyoming and Montana argue the denial violates both the Dormant Commerce Clause and the Foreign Commerce Clause of the United States Constitution.
“Our Constitution was written to ensure that interior states have access to foreign markets through our coastal sister states,” Gordon said during a news conference Tuesday morning. “Today, we are defending Wyoming and Montana’s right to utilize American port and rail infrastructure for all of its products.”
Gordon argued Washington’s denial under Section 401 of the Clean Water Act could potentially be extended to deny other types of trade.
“The issue today is coal, but the logic implied here could be attached to almost any logic that would say, ‘we don’t want to have cattle, wheat, trona,’ ... because the issues that they raised under this provision were non-water quality related,” Gordon said.
The decision to pursue legal action was a long time coming for Gordon, who said he has been exploring the state’s options since he began putting together his administration.
“You don’t bring these cases lightly,” Gordon said. “These are reserved for the very highest levels.”
While the case marks an effort to ship more coal to international markets, Gordon was quick to acknowledge the need to find ways to reduce carbon emissions, noting the last decade was the hottest one on record.
“Our globe is facing a climate crisis, and it is imperative that we begin immediately to address carbon emissions,” Gordon said.
The governor noted Washington’s carbon emissions would be lower through use of Powder River Basin coal than it would be through other markets.
Gordon also brought up investment in carbon capture technologies as an important way to reduce emissions, even mentioning a call to action from teenage climate change activist Greta Thunberg.
“The most important aspect of this ... is that we need to start actively removing carbon dioxide from the atmosphere,” Gordon said.
Gordon mentioned efforts within the University of Wyoming’s Energy Resources Council to research and develop such technologies. He added the state has also been in talks with Rocky Mountain Power to gauge its interest in these technologies.
“So far, (Rocky Mountain Power) has been receptive, but not overly enthusiastic, and that’s understandable because of the costs that are associated (with carbon capture technologies),” Gordon said.
The decision doesn’t mark the first effort to get the state to enter into a lawsuit. At the end of last year’s legislative session, in an effort to prevent confusion and redundancy, Gordon vetoed a bill that would have authorized the Legislature to enter a lawsuit to get Wyoming’s coal exported through Washington.
During the news conference this morning, Gordon said he had informed leadership in the Legislature of his decision.
“I believe the Legislature is fully on board,” he added.
If the Supreme Court denies the state’s request, the state will sort out its remaining options, Wyoming Attorney General Bridget Hill said.
“This is a very important issue for the state of Wyoming, and if they deny us, we would have to look at possible other remedies,” Hill said. “Right now, we believe this is our sole remedy, but we would certainly research and try to think of other ways to pursue the interests of the state.”
Other states will have a chance to join the case, Gordon said, though it remains to be seen how many will choose to do so.