Suing another state for trying to avoid environmental harm associated with transporting Wyoming coal was never a good idea.

But that bad idea turned into an exercise in absurdity when — realizing that their much-hyped coal export terminal wasn’t going to happen — Wyoming officials threw good public money after bad with a quixotic series of legal actions.

Last week the U.S. Supreme Court finally, mercifully euthanized the boondoggle when it declined to hear Wyoming and Montana’s lawsuit against the state of Washington. The suit argued that Washington didn’t have the right to block construction of an export terminal that would allow Powder River Basin coal to be shipped to Asian markets.

Predictably, the reaction from Wyoming and coal industry officials was surprise, frustration and dismay. Yet the high court’s sound decision should have never been in doubt for a moment.

In 2017, Washington, citing the Clean Water Act, denied a permit to the Utah-based Lighthouse Resources to build its Millennium Bulk Terminal project on the Columbia River. 

Federal courts repeatedly rejected Lighthouse’s appeals. The courts apparently didn’t think much of the arguments in amicus briefs filed by Wyoming and five other states. In January 2020, Wyoming and Montana decided to file their own suit against Washington, claiming it had violated their right to conduct interstate commerce.

Lighthouse abandoned its plans in December and declared bankruptcy. In May, acting U.S. Solicitor General Elizabeth Prelogar asked the Supreme Court to not take up the case, since Wyoming and Montana could not prove they were injured by the failure of the port project.

Given former President Donald Trump’s promise to end the federal government’s so-called “war on coal,” save miners’ jobs and revive the industry, the two states were probably confident they had the unwavering support of Trump’s solicitor general. It wasn’t the first or last of his lies they swallowed hook, line and sinker.

But Trump’s solicitor general never bothered to weigh in on the case, leaving it to President Joe Biden’s administration to declare the issue moot. The Supreme Court that Trump packed with conservatives agreed, 7-2, with only Justices Samuel Alito and Clarence Thomas showing interest in hearing the lawsuit.

Gov. Mark Gordon wants Wyoming residents to believe his administration acted prudently and in the public’s interest. But the state’s effort to cast Washington as a villain for its decisions to protect the health and wellbeing of its citizens has been a sham from the beginning.

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Washington opposed all seven coal export terminals proposed in the state over the past decade for numerous, valid reasons. Lighthouse’s project near Longview was the last one standing, garnering the most vocal public outcry. Had it been built, it would have been the nation’s largest coal export facility.

Washington’s Department of Ecology determined in a comprehensive analysis that the terminal would have caused “significant and unavoidable harm” to air and water quality, vehicle and vessel traffic, rail capacity and safety, noise pollution, social and community resources and cultural and tribal resources.

The agency determined that Cowlitz County would have seen 16 slow-moving, 1.2-mile-long trains pass through daily, compounding already significant traffic congestion during peak commute times and slowing emergency responders. The trains would have also delayed tribes’ access to fishing sites above Bonneville Dam.

At the terminal site, coal — 44 million metric tons annually — would have been piled eight stories high and 50 football fields wide.

In the end, it appears Wyoming and Montana officials could care less about Washington’s residents or the state’s environment. Fortunately, the courts found that propping up the coal industry to preserve billions of dollars in state tax revenues is not the federal government’s job.

I guarantee you that Wyoming would not allow another state to say what commerce it must unconditionally accept, and rightly so. Can you imagine the outcry if Colorado sued Wyoming for barring a marijuana warehouse? But from the beginning of this litigation, Gordon tried to frame the coal export issue as an inherently political one in which Wyoming is the victim.

“It is critical that Section 401 of the Clean Water Act not be used to interfere with lawful interstate commerce,” Gordon said in a statement. “It is not a tool to erect a trade barrier based on a fashionable political agenda.”

He was referring, of course, to the primary reason Wyoming’s coal market has precipitously dropped: the world’s dire need to react to climate change by reducing carbon emissions before it’s too late. 

The governor conveniently failed to mention the other market-driven forces that have caused coal’s decline — natural gas is cleaner burning and less expensive, while renewables like wind, solar and battery storage are even cheaper and more non-polluting.

But Gordon offered his own inherently political message when he responded to Washington’s opposition by declaring that one state should not be allowed to “weaponize” a water quality law to oppose Wyoming’s interests.

Many legal experts derided the lawsuit. In May, University of Maryland environmental law professor Robert Percival told The Associated Press that Wyoming could waste a lot of money on the litigation.

“I don’t think they have a legal leg to stand on,” he said. Gordon should have listened to that free advice.

We don’t know precisely how much money Wyoming has spent on this folly, and we will probably never get a full accounting of the state’s expenses.

The Legislature approved $250,000 to fund a lawsuit against Washington in 2019, but Gordon vetoed it on the grounds that it would be confusing for the executive and legislative branches to weigh in separately on the issue. Then a few months later, he asked the state’s attorney general to advise him on how to proceed with a lawsuit.

Earlier this year, the Legislature created a $1.2 million fund Wyoming can use to sue other states that either refuse to export its coal or try to retire coal-fired plants that buy Wyoming coal.

When the Supreme Court declined to hear the Wyoming-Montana lawsuit against Washington, Gordon argued that the case “was never about a single permit or product,” but instead the ability of one state to engage in lawful interstate commerce without the interference of another state.

“Today it is coal,” he said in a statement. “Tomorrow it could be agricultural products or any of our state’s abundant natural resources. At some point the Supreme Court is going to need to take on this matter.”

But the governor misses the point. By refusing to hear the lawsuit, the court spoke loud and clear about what it thinks of the plaintiffs’ flimsy claims. 

Kerry Drake

Veteran Wyoming journalist Kerry Drake has covered Wyoming for more than four decades, previously as a reporter and editor for the Wyoming Tribune-Eagle and Casper Star-Tribune. He lives in Cheyenne and...

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  1. A very good, factual article by Mr. Drake. I hope he continues with this reporting.
    Meanwhile, the Legislature and Governor Gordon continue to embarrass every intelligent citizen and continue also to waste millions for our state. Even the ultraconservative Supreme Court has no interest in reviewing the Governor’s nonsense about his futile attempts to subsidize a rapidly dying industry. the death of the coal industry gives us at least a small chance of saving this planet.

    1. Excellent article ‘Gorgon Should Have Seen Legal Smackdown Coming’! Well researched

  2. This controversy was made up from whole cloth – manufactured for the sole purpose of genning up political controversy.

    The reason I say this is that the Westshore Terminal in Vancouver Canada – the largest coal export terminal in North America, has nearly 10 million tons/yr of available export capacity right now.

    Up until a few years ago Cloud Peak Energy exported, from their Wyoming mines over 7 million ton/yr through Westshore. The Spring Creek coal company (Decker Mt) also exported 2 or 3 million tons/yr.

    Both companies stopped exporting because the overseas markets disappeared.

    This is the real problem for PRB coal – THERE IS NO EXPORT MARKET.

    If there was, it could be serviced through the Westshore terminal.

    You can build a dozen west coast coal terminals. But until a minimally profitable Pacific basin export market actually exists, it won’t do any good.

    Gov. Gordon is or should be completely aware of this. So his position that lack of export capacity is holding back Wyoming coal constitutes a bald faced, dammed lie.

  3. I am usually in favor of Gov. Gordon’s policies and actions, however, the notion of forcing another state to kowtow for Wyomings dying industry is mind boggling. With all of Wyoming’s shrieks over “States Rights” and “government interference”, it was oddly telling that our Chief Executive did not wish to extend this same “freedom” to a western neighbor. By filing this potentially oppressive action, which would have thwarted Washington citizens self-rule if successful, our Goverrnor crossed a line towards dictator governance.

    Sorry Gov. Gordon, but you and whatever minions advised you were wrong and squandered hard-earned, tax dollars to boot. Look ahead to growth industries in Wyoming – and a better future. There’s a reason you don’t see buggy-whip factories nowadays. It would behoove Wyoming to study that lesson and keep up with the changing economies of the world.

  4. With all due respect, I believe that there is another issue that is far more important, and getting lost in this telling of the story. There are 3 US Presidential actions directly associated with the Powder River Basin (PRB) coal valuation being ignored.

    1. The Obama Administration issued a finding in 2014 that Wyoming’s Uniform Commercial Code (UCC) did not pass muster because it allows a parent company to dictate a price to a wholly owned subsidiary, to be treated as a “market price.” That unique flaw in the WY UCC costs Wyoming millions in lost severance taxes (as well as our share of the Federal Mineral Royalties (FMR). Unfortunately the temporary action was not made into a binding order until December 2016.
    2. In December 2016 the Obama Administration prohibited PRB coal from being under valued by non-market sales.
    3. The Trump Administration reversed Obama’s in early 2017 under the Congressional Review Act (CRA).

    Those 3 Presidential actions are not about a trivial episode. The lack of true market prices erodes revenue streams in many areas. Natural gas, NGL liquids, & oil sales revenues are also reduced by this cozy business practice. When Encana bought the Jonah Gas Field from the McMurray Corp, they couldn’t believe that they would be able to sell to themselves. All of the 3 largest producers of the coalbed methane also had both pipelines & turbine generators.

    Prices determined without a party being able to “walk away,” are less than ‘arm’s length’ transactions. The Wyoming UCC must be rewritten to provide the true market discipline. Until then, we will continue to bleed resources at below market value. The 3 US Presidential actions are a testimonial.