The U.S. Supreme Court needs to stop the state of Washington from unconstitutionally blocking the delivery of Powder River Basin coal to foreign markets, according to the attorneys general for Wyoming and Montana.

The two states, in a brief filed with the court, argued justices should take up their challenges to Washington’s denial of permits needed for a proposed coal terminal, even though the terminal’s developer has gone bankrupt.

The brief filed Monday said the issues posed by Wyoming and Montana go far beyond which company will build a terminal and apply directly to Washington’s discrimination against the use of coal as fuel.

“Montana and Wyoming are challenging Washington’s longstanding discrimination against two landlocked states’ sovereign interests in getting one of their most important commodities to market,” the brief said. “Washington’s hostility to coal exports … remains unchanged. Washington has changed nothing and will continue to block Powder River Basin coal exports based on coal’s end use in foreign markets …”

The brief was filed in response to a request from the U.S. Solicitor General asking that the Supreme Court dismiss the lawsuit filed by Wyoming and Montana against Washington in January. The solicitor general argued because the company proposing the Millenium Coal Export Terminal has gone bankrupt, the challenge is moot.

But the brief filed by Wyoming Attorney General Bridget Hill and Montana Attorney General Austin Knudsen said the more important issue of Washington’s refusal to issue permits for a coal terminal, regardless of who develops it, must be addressed.

“Washington will continue to block port development and dissuade bidders from taking up this otherwise lucrative project,” the brief said. “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.”

In their initial lawsuit, Wyoming and Montana officials argued that in denying permits for the terminal, Washington did not simply look at the environmental impacts of the port on Washington, but at the environmental impact of using coal for fuel in other countries. Such “extraterritorial” factors should not have figured into the state’s decision, the lawsuit said.

Monday’s brief said even though the developer of the terminal has declared bankruptcy, Washington’s continued discrimination against Powder River Basin coal will infringe on the “sovereign interests” of Wyoming and Montana by unconstitutionally blocking commerce by the states.

The U.S. Supreme Court is the only court that can issue a judgment in such cases, the two states said, making it necessary for the legal action to proceed.

“If anything, that the developer is now bankrupt is one more fact to be weighed in determining the important legal issue raised in this matter — whether Washington’s policies and practices violate the Commerce Clause (of the Constitution) to Wyoming and Montana’s detriment,” the brief said.

Unless prevented from doing so, Washington will continue to prevent the construction of coal ports, the brief said.

“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,” it said.

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