States will seek relief from the U.S. Supreme Court over violation of Commerce Clause

CHEYENNE, Wyo. – Wyoming Governor Mark Gordon today announced that Wyoming and Montana have jointly asked the United States Supreme Court to hear a challenge to Washington State’s unconstitutional discrimination against a proposed coal export terminal.

Specifically, the two states seek to invoke the U.S. Supreme Court’s original jurisdiction, which allows for disputes between states to bypass lower courts and proceed directly to the U.S. Supreme Court. In this case, Wyoming and Montana argue that Washington’s discriminatory denial of a Section 401 Water Quality Certification for the coal terminal violates both the Dormant Commerce Clause and the Foreign Commerce Clause of the United States Constitution. The Commerce Clause to the U.S. Constitution authorizes the federal government — not states — to regulate interstate commerce.

“I did not come to this decision lightly, but Wyoming’s ability to export one of our greatest natural resources is being blocked unlawfully,” Governor Gordon said. “It is critical that Section 401 of the Clean Water Act not be used to interfere with lawful interstate commerce. It is not a tool to erect a trade barrier based on a fashionable political agenda.”

“Montana’s access to growing overseas markets shouldn’t be dictated by the latest political fads on the West Coast,” Montana Attorney General Tim Fox said. “As we are telling the court, the framers of the United States Constitution wrote the Commerce Clause to prevent the very harms that Washington state is inflicting upon Montana and Wyoming today.”

The challenge, which has been in the works for months, stems from a 2017 decision by the Washington Department of Ecology to deny permit applications to build a proposed coal terminal in Longview, Washington called Millennium Bulk. Washington officials denied a Section 401 Water Quality Certification for the Terminal with prejudice, effectively killing the project. Governor Gordon has continually maintained that Washington acted inappropriately in denying the State’s Section 401 certification on account of impacts unrelated to water quality issues.

“Washington’s decision to deny this permit was heavily skewed on non-water quality-based adverse impacts,” Governor Gordon said. “This was an unconstitutional, protectionist maneuver based on alleged effects that are outside of the scope of Section 401.”

The states’ filing argues that Washington’s actions amount to a de facto embargo on Montana and Wyoming coal that is unconstitutional. Both states have vast reserves of low-sulfur coal that generate hundreds of millions of dollars in critical state revenue each year, and both states seek access to foreign markets with a specific need for that coal.

Governor Gordon remains hopeful that the U.S. Supreme Court will act expeditiously and grant a hearing on this issue that is critical to the state’s economic interests.