NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's uplifting perspective on world, national, and local politics.

Monday, June 28th, 2021

Supreme Court tosses Montana, Wyoming lawsuit that demanded dirty coal exports

The Supreme Court of the Unit­ed States today declined to take up a law­suit filed by the states of Mon­tana and Wyoming that belat­ed­ly sought an injunc­tion to revive efforts to con­struct port infra­struc­ture in Wash­ing­ton State to enable the export­ing of large quan­ti­ties of coal, the dirt­i­est fos­sil fuel there is.

The Court’s deci­sion means that lawyers for Mon­tana and Wyoming’s pro-coal state gov­ern­ments will not get the oppor­tu­ni­ty to fur­ther plead their case to the six mem­ber right wing major­i­ty of jus­tices col­lec­tive­ly appoint­ed by George H.W. Bush, George W. Bush, and Don­ald J. Trump.

The two states had con­tend­ed in their final, sup­ple­men­tal brief sub­mit­ted in sup­port of their motion for an injunc­tion that a refusal to hear their case would effec­tive­ly leave them with no recourse for reviv­ing the coal export ter­mi­nal project they des­per­ate­ly want built, but which has already been abandoned.

Wash­ing­ton will con­tin­ue to block port devel­op­ment and dis­suade bid­ders from tak­ing up this oth­er­wise lucra­tive project. 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. 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.”

To which we say: Good! That coal needs to stay in the ground.

The Court’s dis­missal of Wyoming and Mon­tana’s legal cru­sade for coal comes on the same day as the hottest tem­per­a­tures ever record­ed in the recent his­to­ry of the Pacif­ic North­west. It should be abun­dant­ly, painful­ly clear to every­one that the Earth has a fever. The com­mon home we all share is in trou­ble. Cli­mate dam­age is caus­ing extreme weath­er and sea lev­el rise, among oth­er consequences.

Repub­li­can politi­cians in Mon­tana and Wyoming seem not to care.

As far as they’re con­cerned, coal is just good busi­ness, and they ought to be able to extract every last nugget of the stuff for burn­ing here or else­where, regard­less of the harm it would cause to the plan­et and to humanity.

Though the Mil­len­ni­um Bulk Ter­mi­nal project is not going to be mov­ing for­ward, plen­ty of coal from Wyoming and Mon­tana is nev­er­the­less still being export­ed through exist­ing facil­i­ties at Wash­ing­ton ports — which is a problem.

“Plain­tiffs’ claims are mer­it­less. Their case is premised on the idea that Wash­ing­ton is ‘blockad­ing’ their coal, pre­vent­ing them from ship­ping their goods to for­eign mar­kets. In real­i­ty, mil­lions of tons of coal from Mon­tana and Wyoming pass through Wash­ing­ton each year for export, and there is unused coal export capac­i­ty at exist­ing west coast ports,” AG Bob Fer­gu­son and Solic­i­tor Gen­er­al Noah Pur­cell wrote in a reply brief sub­mit­ted by the State of Wash­ing­ton.

“The per­mit denial at issue here was based on valid envi­ron­men­tal con­cerns specif­i­cal­ly autho­rized by fed­er­al law, not dis­crim­i­na­to­ry motives.”

“Ulti­mate­ly, this case is not a dis­pute between States. It is about the denial of one per­mit appli­ca­tion sub­mit­ted by one pri­vate com­pa­ny. That dis­pute can be resolved in the lit­i­ga­tion that already is pro­ceed­ing. Noth­ing about this case mer­its the exer­cise of this Court’s orig­i­nal juris­dic­tion,” Fer­gu­son and Pur­cell added.

The Biden admin­is­tra­tion sided with Wash­ing­ton State in urg­ing the Court not to hear the case, tak­ing the posi­tion that there was no con­tro­ver­sy to be resolved.

Attor­neys for the Depart­ment of Jus­tice char­ac­ter­ized the case this way:

Mon­tana and Wyoming seek leave to file a bill of com­plaint chal­leng­ing Washington’s denial of Millennium’s appli­ca­tion for a cer­ti­fi­ca­tion under Sec­tion 401 of the Clean Water Act a cer­ti­fi­ca­tion that would have been a pre­req­ui­site to build­ing a new coal export ter­minal on the Colum­bia Riv­er in Washington.”

“Regard­less of whether that denial was unlaw­ful, how­ev­er, Millennium will not be build­ing its pro­posed ter­mi­nal. After Mon­tana and Wyoming sought leave to file their bill of com­plaint in this Court, Mil­len­ni­um filed for bankrupt­cy and divest­ed itself of any inter­est in the prop­er­ty in ques­tion. Accord­ing­ly, this suit would not redress Montana and Wyoming’s assert­ed injury from the denial of cer­ti­fi­ca­tion under Sec­tion 401. Because no Arti­cle III case or con­tro­ver­sy exists, the motion for leave to file a bill of com­plaint should be denied.”

Wyoming recent­ly cre­at­ed a $1 mil­lion plus pro-coal legal fund for the pur­pos­es of advanc­ing law­suits like the one the Supreme Court dis­missed today.

The case’s demise isn’t going over well in Cheyenne or Helena.

Wyoming Gov­er­nor Mark Gor­don called it “extreme­ly frustrating.”

Mean­while, Wash­ing­ton’s elect­ed rep­re­sen­ta­tives are hap­py to no longer be defen­dants in an anti-cli­mate, right wing legal action.

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