Lawyers: Wyoming pro-coal argument unlikely to work on Cherry Point proposal

A civil war pitting commercially minded leaders in Wyoming against environmental regulators in Oregon could spread to Whatcom County.

The state of Wyoming on Monday, Sept. 8, appealed Oregon’s rejection of a permit needed to build a dock on the Columbia River, where barges would receive coal for eventual export to Asia.

The argument used in Oregon by the nation’s largest coal-producing state might come into play again, if Whatcom County or Washington denies permits for a proposed coal terminal at Cherry Point. But environmental lawyers were dismissive of Wyoming’s arguments and the appeal’s relevance here.

Wyoming’s attorney general asserted in his appeal letter that the Oregon Department of State Lands went beyond its authority when it denied the permit for a facility in Boardman, Ore., that would ship up to 8.8 million tons of Wyoming coal a year.

“The department’s decision has stopped an important international commercial export project that will benefit the state of Wyoming and its citizens, based on the department’s apparent dislike for the commodity that will pass through the port,” Wyoming Attorney General Peter Michael wrote. “One state cannot unilaterally stop interstate and foreign commerce to the detriment of its sister states.”

Jan Hasselman, an attorney in the Seattle office of Earthjustice, called Wyoming’s arguments “frivolous” and “bullying.”

“They have alleged that Oregon has no authority whatsoever over the permit because it implicates international trade,” Hasselman said. “That’s a remarkable and very insidious argument. It’s basically telling the people of Oregon that they have no say in the matter. Presumably, that’s what they think about the process in Washington. I would think that the citizens in both of our states would have a big problem with that.”

A spokesman for Wyoming Gov. Matt Mead wouldn’t comment on possible legal actions in Washington.

“Wyoming will analyze these decisions on a case-by-case basis. We wouldn’t comment beyond that,” said Renny MacKay, Mead’s spokesman.

Hasselman said he could see Wyoming filing a similar appeal if a permit for Gateway Pacific Terminal is rejected.

“Sure, it’s a foreseeable outcome,” he said. “But it’s legally frivolous. It doesn’t pass the straight-face test. The people of Whatcom County get to decide whether to permit a huge industrial facility in the middle of their community.”

Terry Wechsler, a Bellingham attorney and anti-coal activist who co-founded Protect Whatcom, noted the historical import of Wyoming’s legal action in Oregon but was equally dismissive of the coal state’s arguments.

“Their commerce clause argument is a throwaway,” Wechsler said in an email to The Bellingham Herald. “They raise it without citing a single federal case in support of that argument because, presumably, there are none.”

Wechsler said the appeal marks the first time a state cited the commerce clause of the U.S. Constitution to challenge a decision that blocked a coal terminal. Wyoming officials have been asserting that federal commerce law trumps state environmental reviews ever since the Washington Department of Ecology in July 2013 announced it would undertake a sweeping review of the environmental impacts of Gateway Pacific Terminal, including the pollution created when the coal is burned in Asia.

Wechsler said if a decision is handed down in the appeal in Oregon, it might be cited if Wyoming brings a similar argument to Washington.

“While Oregon case law is not binding on Washington tribunals, since the question is a federal one, it could be cited,” Wechsler said.

All this might be moot, Wechsler said, because she doubts Wyoming has a right to appeal Oregon’s permit decision.

“Most courts require more than a mere economic interest” to have standing in an appeal, Wechsler said. “Wyoming cites no harm other than lost potential tax revenues.”

The Wyoming Legislature earlier this year approved $500,000 for possible legal action against Washington for what Wyoming officials call overly burdensome environmental regulations here.

In an interview in June, Chris Rothfuss, Democratic state senator from Laramie, hinted at the legal trouble Washington state could face.

“States can start having trade wars with other states,” he said, when asked if he was concerned about Ecology’s wide-ranging review of Gateway Pacific Terminal. “If we start to take action based on what’s happening ... somewhere else in the world ... that would be a difficult play because of the commerce clause of the Constitution.”

Rothfuss was asked if Wyoming would sue Washington over its so-called excessive regulatory stance.

“I hope it doesn’t come to that,” he said.