Former Washington Attorney General Rob McKenna, now practicing law in the Seattle office of the multi-national Orrick law firm, has prepared formal comments for the states of Montana and North Dakota, challenging Washington state's constitutional right to require a sweeping environmental review of coal export terminal impacts.
(UPDATE ADDED AT BOTTOM)
"The States (Montana and North Dakota) strongly believe that such regulatory decisions are outside the scope of Washington’s authority under the U.S. Constitution, and improperly burden international commerce," the McKenna-authored comments say.
Those comments were submitted to state, Cowlitz County and federal regulators now conducting the scoping process for Millenium Bulk Terminals in Longview, Wash.
In remarks issued on his official web page, Montana Attorney General Tim Fox elaborated:
“As one of the most trade-dependent states in the nation, Washington knows full well the importance of access to global markets. Montana is simply asking that Washington regulators follow established law in conducting their reviews,” Attorney General Fox said.
The formal comments submitted by Montana and North Dakota say the Washington Department of Ecology was wrong to mandate a sweeping review of the Gateway Pacific Terminal project in Whatcom County, and Ecology should refrain from doing the same thing in Longview.
The comments were submitted on McKenna's Orrick letterhead, over his signature.
Here's what McKenna wrote about Cherry Point, on behalf of his clients:
"Ecology's EIS scope for the Cherry Point project is unrealistically broad, includes speculative impacts, requires impossible assessments of foreign environmental impacts, and appears to have been designed to hinder the development of that terminal."
McKenna was the GOP candidate for governor in 2012, and was defeated by Jay Inslee.
Jan Hasselman, attorney with the Earthjustice environmental law firm was (not surprisingly) unimpressed with McKenna's legal arguments. He noted the lack of citations of law or court cases.
"If a summer intern brought that in they would be fired on the spot," Hasselman quipped. "This is a heavy dose of bluff and bluster."
Hasselman says he doesn't think there is anything in the law to block the state from considering a broad range of environmental impacts from coal shipment and export. If the state eventually decides to block permits for coal export terminals based on legitimate state interests in the State Environmental Policy Act, the courts might well uphold the state's right to do so. But that is a long way off, he added.
"All of these questions are a very long way away," Hasselman said. "At this point, all the state is doing is asking the question ... the coal companies are panicked at the asking of the question ... It reflects this rising sense of panic among the proponents that the more questions that get asked, the worse the projects look."