Gordon reacts to Supreme Court's inaction on coal port suit


WYOMING – The United States Supreme Court ruled earlier this week that it will not hear a challenge made by both Wyoming and Montana to a proposed coal-port case based in Washington State.

Gov. Mark Gordon released a statement following the Supreme Court’s determination. His office described Washington State’s denial of the terminal made years ago as “unconstitutional discrimination.”

Gordon stood by his claims that the case was about interstate commerce without interference from another state.

“It is extremely frustrating that the U.S. Supreme Court failed to grant a hearing on the critical issue that this case raised,” Gordon said. “At some point the nation will have to figure out whether it expects to grow business or just to restrict it.”

This case originated in 2017 when the Washington Department of Ecology denied permit applications to build a proposed coal terminal in Longview, Wash. Officials denied Section 401 Water Quality Certification applications by Millennium Bulk because of the project’s potential harm to the Columbia River and surrounding environment.

Overall, the state’s Department of Ecology conducted a review that found the project would: require driving 537 pilings into the riverbed, destroy 24 acres of wetlands, eliminate 5 acres of aquatic habitat, increase ship traffic on the Columbia River by 1,680 trips a year and impair tribal access to protected fishing sites.

“Because we think the environmental harm potentially caused by the project cannot be mitigated, we rejected the application ‘with prejudice,’ meaning that the company cannot reapply to build and operate the same proposal,” Washington’s Department of Ecology wrote in its report.

Millennium Bulk appealed that decision only to have it dismissed.

Gov. Gordon has repeatedly claimed Washington State acted inappropriately in denying the certification on account of impacts unrelated to water quality issues.

“This was an unconstitutional, protectionist maneuver based on alleged effects that are outside of the scope of Section 401,” Gordan said in January, when Wyoming and Montana jointly asked the U.S. Supreme Court to hear a challenge in the case.

In early June, the U.S. Solicitor General submitted a brief in the case arguing that the case is moot due to the bankruptcy of Millennium Bulk’s parent company. Lighthouse Resources cited COVID-19 as a major driver for its Chapter 11 bankruptcy filing in January this year.

Wyoming and Montana argued the case was larger than a single developer.

The previous U.S. Solicitor General, as appointed by previous President Donald Trump, did not acknowledge the case when asked in October last year.

Following the solicitor general’s decision, a release stated Gordon remained hopeful the U.S. Supreme Court would act expeditiously and grant a hearing on the issue. Instead, the Supreme Court – with a 6-3 conservative super majority – elected not to hear the issue.

“Today it is coal, tomorrow it could be agricultural products or any of our state’s abundant natural resources,” Gordon said. “At some point the Supreme Court is going to need to take on this matter.”

Gordon reiterated that his administration has moved to protect the state’s abilities to bring its various markets to communities. Wyoming is part of multiple lawsuits against President Joe Biden and his administration, including one ongoing case against the current hold on oil and gas leases on federal lands. That case recently brought Wyoming some optimism as a judge in Louisiana ruled lease sales should continue.

“I remain committed to continuing our efforts to export clean coal to assist countries in meeting their energy needs and climate goals,” Gordon said.

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