The fate of a coal export bill that gives Wyoming lawmakers the option to hire private lawyers to sue Washington State remains uncertain ahead of the governor’s final bill signing on Friday in Cheyenne.
Gov. Mark Gordon’s staff announced Wednesday that seven bills would receive the governor’s signature at the end of the week. However, his decision on a handful of remaining measures, including the coal export terminal bill, will be announced at a press conference Friday morning.
“Governor Gordon wanted to spend more time reviewing those six bills, taking in all the comments we have received and weighing his options,” Rachel Girt, the governor’s spokeswoman, said in an email Wednesday.
The governor could veto the bill outright, line-item veto the $250,000 financial appropriation, signal a public rebuff of lawmakers by allowing the bill to become law without his signature, or, of course, sign it.
The bill’s sponsor, Rep. Chuck Gray, R-Casper, said he hoped Gordon would let the bill through. Gray, who said he had discussed the bill multiple times with the governor, characterized the bill as an economic development issue.
“There is an enormous amount at stake with this bill,” he said in a statement via email.
Gray’s coal export bill first appeared in 2018. It took aim at Washington State — which has blocked a coal export terminal by denying a necessary state water permit. Gray said at the time that Wyoming needed to step into the fight and that the failure to do so necessitated action from the Legislature. He asked for a quarter of a million dollars and authority for the Legislature to use that cash in hiring a private litigator to sue the West Coast state.
The bill didn’t gain traction, was criticized for sidestepping the the attorney general’s office — Wyoming’s governor appointed attorney and general expert in deciding when the state enters into lawsuits — and died before making it to committee.
Soon after the 2018 session, Wyoming did join an existing lawsuit against Washington by filing as a friend of the court — a party with a position that has bearing on a case but is not an actual party to the case. Gray, the original bill’s sponsor, noted at the time that the action was a good first step, but likely not enough.
“The state filing a lawsuit in federal court will ultimately give us the best chance of a good result,” he said in a May 10 email. “We need to continue following this. Just one coal export terminal would mean thousands of jobs and hundreds of millions of dollars in our economy.”
Last year, the Legislative Services Office estimated the potential revenue gain from the proposed Millennium Bulk coal export terminal. If the terminal, capable of exporting 44 million tons of coal, were to export 26 million tons of Wyoming coal, for example, the total reward to the state would be more than $50 million per year.
This year, Gray launched his bill again. It didn’t have an easy time, but did make it through relatively unscathed.
Authority to approach a lawsuit with Washington is handled in two ways in the bill. Up until August, a majority of both chambers of the Legislature while in session, or a majority of the Management Council during the interim period, with input from the governor’s office, can authorize a suit through a private attorney. After August, the Management Council can vote to sue through a private attorney with or without coordination with the governor. The bill also sets up an account to pay for the lawsuit, with $250,000 appropriated from the general fund.
Sen. Affie Ellis, R-Cheyenne, did not vote in favor of the bill. She said in a recent interview with the Star Tribune that in her experience, having worked in the Wyoming Attorney General’s Office, Wyoming approaches these cases strategically.
They appeared to have done so with the coal export litigation as well, she said.
“I didn’t understand the need for the Legislature to take a look at it when Wyoming already appears to be involved in that case,” she said.
Ellis approved of the bill’s intention — fighting on behalf of Wyoming’s coal industry — but not the legal strategy, she said, which could have unintended consequence of muddying the current litigation against Washington that Wyoming is already a part of.