Gov. Mark Gordon directly called out Washington state’s role in blocking overseas coal exports Tuesday in testimony to U.S. Congress, marking the latest development in the governor’s efforts to expand markets for Wyoming’s producers overseas.
The governor’s testimony came as part of the Committee on Environment and Public Works’ hearings on reforms to Section 401 of the Clean Water Act, an effort that has long been a focus of committee chair and Wyoming junior Sen. John Barrasso.
While Gordon acknowledged Section 401 is a critical piece of legislation for protecting water quality, he argued that in some cases — particularly in Washington — the legislation has been abused in order to fight back against politically unpopular developments. Specifically, the governor referred to an export terminal that would have been used to export coal from states like Montana, Colorado, Utah and Wyoming out of the Pacific Northwest, “a protectionist maneuver based on alleged effects that are outside of the scope of Section 401,” Gordon said.
The determination, Gordon argued, was “heavily skewed on non-water quality-based adverse impacts,” including reasons like potential greenhouse gas emissions from rail transportation, noise and vibration from the trains themselves, the social and community impacts from noise and air pollution, and cultural resource impacts.
“We need to make sure Section 401 implementation lines up with the Clean Water Act’s intent,” Gordon said. “This is founded on the principle that states can exercise their discretion but not abuse it.”
Though Gordon acknowledged concerns for state’s rights to apply the law as needed — as well as the intent of blocking the terminal’s construction as a means of “taking control of their destiny” in their fight back against climate change — he argued that exploiting a loophole in the law was not an effective means to do so, and ignored the needs of energy-producing states and the markets they serve.
In written testimony, Gordon pointed to a recent Clean Water Act Section 401 certification decision conducted by Washington state used to block the construction of the Millennium Bulk Terminal, a decision Gordon said has “imperiled the development of Infrastructure that would enable Wyoming’s access to energy markets overseas” and was based more on ideology than the intent of the law itself.
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“The Clean Water Act, particularly Section 401, is designed to allow states to protect the water quality. It is not a tool to erect a trade barrier based on political whims or parochial politics,” Gordon said. “I strongly contend that Section 401 must not be used to impede lawful interstate commerce.”
“We can protect water quality, build infrastructure responsibly, address climate change, and promote interstate commerce under Section 401,” he added. “The Clean Water Act already provides a framework for this by granting broad responsibilities to states under Section 401 while allowing the necessary flexibility to fulfill their roles as co-regulators to protect our nation’s waters. Section 401 certification decisions, however, have also led to inconsistent interpretation and Implementation of the statute among states. This must be fixed.”
Gordon’s testimony comes amid continuing litigation against Washington state. Multiple states — including Wyoming, Kansas, Montana, Nebraska, South Dakota, North Dakota, Utah and Oklahoma — have filed an amicus brief in connection to that litigation. They have argued that actions similar to those made by Washington could lay the groundwork for the blockade of similar exports, like beef, which have been highlighted in greater conversations on climate change by leaders in other states.
“The rhetoric from leading officials in these states shows that these are not empty hypotheticals,” the brief read. “The logic advanced by the coastal states in this litigation, which would apply equally to these other scenarios, shows how slippery the slope may become.”
States like Washington, however, have argued that legal precedent is on their side. In written testimony Tuesday, Laura Watson, a senior assistant attorney general and division chief in the Washington state attorney general’s office, argued that the implementation of Section 401 should be left completely to the states and that EPA-led reforms to the law would constitute federal overreach over a precedent laid by the U.S. Supreme Court.
“In Washington, we have become accustomed to being targets of the rhetoric used to justify the undoing of Section 401, but I feel compelled to tell this Committee — in no uncertain terms — the extreme changes being proposed to Section 401 are unfounded and unnecessary,” Watson said. “They run counter to congressional intent and the concept of cooperative federalism; and they carry grave risks to clean water for families in every state.”
Wyoming originally joined the amicus brief against Washington in 2018. In March of this year, Gordon vetoed legislation that would have authorized Wyoming to hire a private attorney to bring litigation against the Evergreen State, saying “it’s very important we speak with one voice” to avoid confusion.
The governor asked Wyoming Attorney General Bridget Hill to research a way to bring a lawsuit against Washington state earlier this year. A spokesman for Gordon’s office told the Star-Tribune on Tuesday afternoon that such a strategy is “still under review.”
Editor’s note: This story has been updated to correct inaccuracies concerning Wyoming’s actions in the litigation against the state of Washington.