The states of Wyoming and Montana are pushing back on the federal government’s claims that a lawsuit over a proposed Washington state coal port is moot because the project collapsed.
In their response to the solicitor general’s filing from last month, the states maintain the issue is bigger than one development. Washington’s actions, they claim, are discriminatory to the coal industry and causing Wyoming and Montana harm.
“Washington will continue to block port development and dissuade bidders from taking up this otherwise lucrative project,” lawyers for the states wrote in their new filling. “Evidenced by its successful eight-year crusade to kill the terminal project, Washington’s policy-driven interpretation of its laws and regulations is not going to change on its own. Without relief from this Court — the only forum with the power to grant it — Wyoming and Montana likely will never see their abundant coal reserves to foreign markets.”
Wyoming and Montana took legal action against Washington last year over that state’s decision to deny a permit to Millennium Bulk Terminals, which was intended to serve as a hub for Powder River Basin coal before it was shipped to overseas markets. The coal-producing states argue Washington’s actions amount to the unlawful regulation of interstate commerce.
Last month, U.S. Solicitor General Elizabeth Prelogar, who represents the federal government in matters before the U.S. Supreme Court, argued that the matter was moot because the Millennium project has since declared bankruptcy.
“None of the relief that Montana and Wyoming seek would change the fact that there will be no Millennium Bulk Terminal — and thus no chain of causation running from an increase in coal exports to increased revenues for Montana and Wyoming coming from ‘coal severance and other taxes,’” the brief argued.
The solicitor general’s position against the coal port was not unexpected. The Supreme Court in October invited the acting solicitor general — who at that point had been appointed by the Trump administration — to provide an opinion on the suit. The official did not do so before leaving office at the end of Trump’s term, leaving the decision to the solicitor general appointed by the Biden administration.
But in their new filing, the states say the project’s failure doesn’t mean someone else might not try to pursue a port for shipping Powder River Basin coal overseas. Therefore, the states reasoned, the Supreme Court should get involved.
“Only this Court can decide whether Washington’s policy to blockade Powder River Basin coal exports violates the Commerce Clause,” the states wrote. “The Court should exercise its original jurisdiction and allow Montana and Wyoming to vindicate their sovereign interests. The Court should not dismiss the States’ complaint simply because Washington’s discriminatory policies successfully bankrupted the most recent developer.”
The company initially proposed the terminal in 2012. Wyoming government and industry leaders have long said the west coast port would be critical to one of the state’s premier industries, as it would allow Powder River Basin firms to export coal to Asia.
In January 2020, Wyoming joined Montana in asking the U.S. Supreme Court for a hearing.
In December, Lighthouse Resources, the proposed terminal’s parent company, filed for Chapter 11 bankruptcy. It then failed to find an interested buyer for the terminal.