Gov. Mark Gordon announced Tuesday that Wyoming will take legal action against Washington state over its blocking of a key coal export terminal, a decision long awaited by state lawmakers who see the west coast terminal as crucial to bringing Powder River Basin coal to international markets.

Wyoming has joined Montana in asking the U.S. Supreme Court for a hearing on the dispute. By blocking the construction of the largest coal export terminal on the west coast, Washington sought to regulate interstate commerce and thereby violated the Dormant Commerce Clause and Foreign Commerce Closure of the U.S. Constitution, the two coal-producing states allege.

“I did not come to this decision lightly, but Wyoming’s ability to export one of our greatest natural resources is being blocked unlawfully,” Gordon said in a statement.

For several months, Gordon has been in discussion with the state’s attorney general over whether to pursue an original lawsuit against Washington. Wyoming and Montana filed a motion Tuesday, bypassing lower courts, asking the highest court to accept an original action against the state of Washington, according to Wyoming Attorney General Bridget Hill.

“This is asking the court to expect an original action against the state of Washington,” Hill said Tuesday.

The Millennium Bulk Terminal, located on the Columbia River at Longview, hit a major hurdle when the Washington Department of Natural Resources denied a necessary permit for construction on environmental grounds. The Washington State Court of Appeals in August upheld the state’s choice to deny the required state-owned land permits for the terminal last year.

But if completed, the terminal could ship coal produced in Wyoming’s Powder River Basin to international markets, boosting the state’s economy, industry groups and Wyoming lawmakers say. If the terminal opened, it could ship out 44 million metric tons of coal every year, according to the motion filed in court.

In his press conference Tuesday, Gordon said Wyoming’s motion focused primarily on the states’ constitutional right to commerce, with a direct challenge to the state’s application of Section 401 of the Clean Water Act — an area the governor testified against in an appearance on Capitol Hill late last year.

“We need to make sure Section 401 implementation lines up with the Clean Water Act’s intent,” Gordon said at the time. “This is founded on the principle that states can exercise their discretion but not abuse it.”

To Gordon, Washington’s decision to deny the permit was politically motivated and not on the basis of water quality. Politicians across the country have faced public pressure to address the increasing rates of carbon dioxide in the atmosphere and curb climate change.

In a statement, Gov. Jay Inslee adamantly defended the state’s decision to deny the permit.

“As we have said before, we believe the Department of Ecology ran a rigorous process in accordance with our environmental laws. This project was rightfully denied under state and federal authority because it failed to meet water quality and other environmental standards,” Inslee stated. “It was proven to have multiple, unmitigated adverse impacts that would devastate Washington’s waters, surrounding communities, and the environment. The denial has been upheld by an independent appeals board, and this latest challenge does not appear to be raising any new issues. We will continue to defend the decision and our state’s right and obligation to enforce the laws that protect Washingtonians’ clean water.”

Gordon once again emphasized his own vision to lower emissions from coal through the advancement of carbon capture technology in Wyoming. But ultimately, Washington’s action came down to “a question as old as our Constitution,” regarding the rights of states to conduct commerce, according to the governor.

“We believe Washington has offended that right and we seek to restore all the rights afforded to the states by our Constitution,” Gordon told reporters. “Our Constitution was written to ensure that interior states had access to foreign markets through our coastal sister states. We are defending Wyoming’s and Montana’s rights to use ports and rail infrastructure.”

A long time coming

Tuesday’s announcement is the next step in a process started at the close of the 2019 legislative session. At that time, Gordon vetoed a bill passed by the Wyoming Legislature granting the Management Council the authority to enter into original litigation against states like Washington. He said it was important for the state to speak with one unified voice on the subject.

By June, the governor had asked Wyoming’s attorney general for a strategy on how to pursue an original lawsuit. But he was still undecided on that strategy as recently as last month. However, the subject has been on Gordon’s mind for quite some time, with his opinions on the Millennium Bulk Terminal very public both on the campaign trail and in his inaugural State of the State address last year.

As part of its budget recommendations this session, Gordon’s administration requested several million dollars be set aside for a coal market development program, several hundred thousand dollars of which could be used for an original lawsuit to fight for access in the markets.

“While we cannot control market forces, we can influence the marketability of coal by resisting out-of-state pressures to close coal-fired units early, and by promoting CO2 capture to keep coal a viable, reliable fuel,” Gordon wrote in his letter. “We have not stood idly by while coal-fired power plants close, putting our hard-working miners out of a job.”

“We have and will continue to advocate for Wyoming’s right to commerce in the courts and elsewhere,” he added.

Rep. Chuck Gray, a Casper Republican, who introduced the bill vetoed by Gordon last year and had plans for similar legislation this year, applauded the decision in a statement to the Star-Tribune on Tuesday, saying he was happy the governor had “seen the light” on the prospect of a lawsuit.

“The radical left in West coast states should not be allowed to hold Wyoming jobs hostage,” Gray wrote. “This is a great victory for the people of Wyoming.”

While the Legislature responded favorably to Gray’s legislation last year, it has not yet committed to a set appropriation for such a lawsuit, which Gordon said could be a challenge in a tight budget year. However, the Joint Appropriations Committee has so far kept its proposed budget tight with the governor’s recommendations heading into session next month. As of Tuesday, Gordon believes he and the Legislature are largely on the same page, particularly given the likely sharing of costs between Wyoming and Montana on the case.

“I believe the Legislature is fully on board,” he said Tuesday. “Plus, we have the resources available to put toward this case.”

All of this, of course, is hypothetical unless the U.S. Supreme Court decides to take up the case. Wyoming’s chances under the Trump administration could be much stronger than in recent years. The appointment of a number of conservative judges to the bench in recent years has led some legal experts to believe states will be given more leeway under the U.S. Constitution, while the exit of justices like Justice Anthony Kennedy in 2018 have led to speculation the court could lean less in favor of environmental causes than it has in the past.

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