Supreme Court Inches Closer to Hearing Coal Export Case

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Earlier this month, the Supreme Court inched closer to taking a highly contentious environmental lawsuit.  The lawsuit? A suit brought directly to the court by Wyoming and Montana against Washington State. And, without a doubt, it is the culmination of an almost decade-long fight to permit and develop a coal export terminal, the Millennium Bulk Terminal (MBT), on the banks of the Columbia River in Longview, Washington.    

The MBT is a proposed coal export terminal in Longview, Washington.  If fully developed, it would operate for a minimum of 30 years, exporting up to 44 million metric tons of Powder River Basin (PRB) coal to Asian markets. PRB coal has a lower sulfur content making it more attractive to developing Asian economies than the higher sulfur content of regionally sourced coal. That’s helpful in the fight against reducing emissions of Nitrogen Oxide and Sulfur Dioxide.

At the heart of the lawsuit surrounding the MBT’s future is whether Washington State can block the export of Wyoming and Montana Coal, another state’s commerce, simply because it sees the export and use of coal as politically and environmentally objectionable? In stark legal terms, did Washington State seek to regulate interstate commerce violating the Dormant Commerce and Foreign Commerce Clauses of the U.S. Constitution?

We first wrote about the MBT battle in January 2019. At that point, the regulatory struggle for approval of the 24 Federal and state permits needed to construct the MBT had been waging for almost eight years since 2011.  

The developer of MBT, Utah-based Lighthouse Resources, knew it would be a slog to get all 24 permits.  What didn’t it know?  Well, it certainly didn’t foresee the Washington Department of Ecology (WDE) requiring MBT to purchase carbon offsets for 50% of the Powder River Basin coal shipped to and from the terminal in Longview, Washington. The U.S. Army Corps of Engineers, WDE’s partner in approving the Clean Water Act permit, took the unusual step of admonishing the state agency, stating that it had intruded on areas where “other Federal agencies may have regulatory control.”

Since we wrote our initial piece last year, actions and the war of words between the states have escalated.  Wyoming and Montana took the unprecedented step of seeking relief from the U.S. Supreme Court directly instead of seeking a favorable judgment in the lower Federal district and appellate courts.   

As Jason Beggar, Deputy Director of the Wyoming Energy Authority, put it in an email to Energy Fairness, “Our nation’s founders placed such an important emphasis on the free flow of commerce, that these types of cases are sent directly to the Supreme Court.  We’re hopeful the court will agree that Washington’s decision to block the construction of an export facility was arbitrary and done to deny the opportunity to ship Wyoming’s low sulfur coal to markets that want it.”

We couldn’t agree more. The MBT should be allowed to proceed. The developing economies of Asia are going to generate affordable and reliable electricity from coal. Let’s make sure that power is produced from U.S. exported low sulfur PRB coal. It’s good for the U.S. economy, and it’s good for the collective global effort to reduce emissions.