While most states pursue ways to boost renewable energy, Wyoming is doing the opposite with a new program aimed at propping up the dwindling coal industry by suing other states that block exports of Wyoming coal and cause Wyoming coal-fired power plants to shut down.
The law signed April 6 by Republican Gov. Mark Gordon creates a $1.2 million fund for an initiative that marks the latest attempt by state leaders to help coal in the state that accounts for the bulk of U.S. coal production, which is down by half since 2008.
The law puts West Coast states and Colorado on notice — all seek to get a large share of their electricity from renewables but still get juice from aging Wyoming coal-fired power plants. The approach may run into legal troubles, according to one constitutional expert.
Lawsuits between states aren’t unusual and often involve natural resources, such as water rights. Such cases can go directly to the U.S. Supreme Court if the justices agree to hear them.
So can state vs. state lawsuits help the coal industry?
“We’re supportive of all the efforts of the state right now to protect and defend the industry,” Wyoming Mining Association Executive Director Travis Deti said.
Wyoming could waste a lot of money trying to persuade courts to help coal, countered University of Maryland environmental law professor Robert Percival.
“I don’t think they have a legal leg to stand on,” Percival said.
The Constitution’s Commerce Clause prohibits states from barring goods and services based on their state of origin. States are free, however, to regulate or outright prohibit certain goods and services — coal and coal-fired electricity included — as long as they don’t intentionally target other states, Percival said.
Who might be targets of future Wyoming coal litigation isn’t yet known. Gordon spokesman Michael Pearlman declined to speculate, saying Gordon and Attorney General Bridget Hill would need to study their chances of success, but they could include West Coast states including, again, Washington.
The coal litigation fund followed a 2020 bill that established a $1 million fund to promote Wyoming coal. Wyoming is paying a nonprofit, the Energy Policy Network, $250,000 a year from the fund to contest plans in other states to shut down coal-fired power.
“I will not waver in my efforts to protect our industries, particularly our coal industry. The use of coal is under assault from all directions. And we have stood firm in our support of it throughout,” Gordon said in his state of the state address in March.
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- On May 6, 2021