The battle over using coal as an energy resource has raged on many fronts in recent years. In 2007, in Massachusetts vs EPA, the U.S. Supreme Court issued a landmark opinion giving the EPA the authority to regulate carbon dioxide (CO2) emissions under the Clean Air Act stating “Because greenhouse gases fit well within the Clean Air Act’s capacious definition of ‘air pollutant’ we hold that EPA has the statutory authority to regulate the emission of such gases…”.
This decision ultimately led to the issuance of the Clean Power Plan (CPP) by the Obama Administration in 2014, which sought to reduce CO2 emissions from power plants by 32% by 2030. At the same time this court battle was moving forward in the shadows of the Capitol in Washington, D.C., in the other Washington – Washington State – another “carbon” battle was brewing. The battle was over whether one state’s local anti-coal environmental interests could supersede the foreign policy interests of all the states and nations who still valued coal.
Since 2011, Lighthouse Resources, a Utah-based coal extraction company with mines in Wyoming and Montana, has been seeking to establish the Millennium Bulk Terminal (MBT) on the shores of the Columbia River at the Port of the Longview, Washington. Once established, high-quality Powder River Basin coal would be exported to energy-hungry nations like Japan and South Korea for use in advanced coal fired power plants. Like the State of Washington, both nations have signed and are committed to the goals of the Paris Climate Accords. Unfortunately, the thought of coal being exported from within Washington’s borders to coal plants abroad has created a great deal of heartache among senior elected and appointed State of Washington decision makers.
Going into the MBT development process, Lighthouse knew that it had to obtain regulatory approval for 24 state and federal permits. What it didn’t know? How expansive a view the Washington Department of Ecology (WDE) would take regarding the effects the MBT project would have on climate change. The WDE took the unprecedented step of requiring MBT to purchase carbon offsets for 50% of the coal shipped to and from the terminal. This prompted its federal partner on the water impact statement, the U.S Army Corps of Engineers, to scold the state agency because it had intruded on areas where “other federal agencies may have regulatory control.” This admonition had no effect, as the WDE denied the water quality certification permit MBT needed to get a federal Clean Water Act permit based only on the air emissions produced during the train shipments of coal from Wyoming and Montana.
The basis of the permit denial was the last straw for MBT and statewide elected officials of Wyoming and Montana. On January 3, 2018, MBT’s parent company – Lighthouse Resources – filed a federal lawsuit against Washington Governor, Jay Inslee, claiming that the governor had violated the U.S. Constitution’s Dormant Commerce Clause by blocking coal mined in another state from being exported to a foreign country through Washington State. In other words, the legislative or administrative actions of one state cannot be used to block the foreign exports of another. Since the initial lawsuit was filed, the states of Wyoming, Kansas, Montana, Nebraska, South Dakota and Utah have filed a brief supporting Lighthouse’s lawsuit reiterating Washington state’s assault on the Commerce Clause.
In the case of MBT, the state of Washington launched a clear assault on the coal industry by completely usurping the spirit of the Commerce Clause to advance its own environmental agenda. It’s simply not fair to use a “war on coal” agenda to choke off the foreign commerce of states like Wyoming and Montana simply because they are landlocked. Hopefully, the system of checks and balances will restore sanity to the export of American coal. Powering the world with cost-effective, reliable power is still a priority.