Coal port lawsuit: Bad idea thankfully dead, for now


He may have done it for the wrong reasons, but Gov. Mark Gordon should still be applauded for vetoing a bill to spend $250,000 on a private attorney to sue Washington state over a coal port terminal Wyoming wants built there.

Gordon spiked the bill, he said Friday, because the Wyoming Legislature bypassing his administration’s authority to file its own lawsuit would send a confusing message to the courts. The Equality State has already filed a friend of the court brief in an existing lawsuit against Washington and its chief executive, Democratic Gov. Jay Inslee.

The Legislature adjourned more than two weeks ago, so his veto won’t face an override challenge.

My opposition to the measure is twofold. One, Wyoming has no right to tell another state that it must host infrastructure that for environmental, quality of life and economic reasons it clearly doesn’t want. We believe in local governance, right? And two, the state has no business funding a lawsuit that private industry should pay for themselves. When did Wyoming conservatives abandon the tenet that government shouldn’t pick winners and losers in the marketplace?

The state attorney general signed onto the current lawsuit under then-Gov. Matt Mead. At a Friday news conference that accompanied a bill-signing ceremony, Gordon said that while Wyoming supports the coal industry’s efforts to export its products to Asia, “The challenge here is we have the potential to cause some confusion. … It’s very important we speak with one voice.”

But Wyoming shouldn’t be speaking at all to the courts on this issue. It’s the height of hypocrisy for the Legislature and the governor to tell another state how it must regulate its own environment and business sectors just so a Wyoming industry can benefit.

What if the tables were reversed and Washington and Inslee sued Wyoming for refusing to subordinate its own interests to those of a Washington product? Marijuana, for example, is legal and big business in Washington. Should Wyoming be forced to facilitate the transportation and distribution of Seattle pot to other legal markets? Gordon and the Legislature would be screaming bloody murder, and they would have every right to do so.

Washington hasn’t issued a state water permit to the proposed Millennium Bulk Terminals coal port. It’s within the state of Washington’s rights to block a project using whatever legal state regulatory means it deems necessary — just as it’s within our authority to rely on existing Wyoming law and refuse construction of a cannabis warehouse.

The coal litigation bill was sponsored by Rep. Chuck Gray (R-Casper), whose first attempt to pass the measure failed in 2018. He issued a statement calling Gordon’s veto “detrimental to efforts to protect the coal industry from a radical leftist political ideology that seeks to put it out of business by any means necessary.”

Gray’s “war on coal” rhetoric, particularly his attempt to link Gordon to the “radical agenda” conspiracy theory, is way, way off-base. The far-right Casper radio host and legislator can defend the coal industry all he wants, but he and his supporters should, at least, consider reality in doing so.

The coal industry has been dying for some time, not because of any progressive-driven war but because the free market increasingly prefers different products. Carbon emissions come with real economic and environmental costs. While competitors from other segments of the energy sector — natural gas, wind, solar — have continued to innovate and capitalize on that fact, coal has tried to rely instead on big government to keep it afloat. You don’t have to be Ayn Rand to see the fatal flaws in that approach.

Yet Gray and others insist that any regulation affecting the coal industry’s privilege to pollute — and thus shift their costs to the rest of us — is a crime.

I fully understand that the mineral severance taxes the energy industry pays fund nearly two-thirds of our state government. But artificially pumping up the coal industry through taxpayer funded lawsuits is short-sighted and won’t ever bring King Coal back, in Wyoming or any other state.

Yes, Wyoming will continue mining coal and selling it to domestic users at some level for decades to come. But it’s simply foolhardy for Wyoming to not do everything it can to follow the models set by other forward-thinking states and focus on renewable resources like wind and solar power. The coal train has been good to Wyoming, but we can all see where the track leads. We need to switch course, and fast, before it plunges over the cliff and takes Wyoming with it.

Even if a port in Washington was built to handle Wyoming coal exports to China, Japan and other countries, many experts believe such trade isn’t economically feasible. If it was, Cloud Peak — the only publicly traded company in Wyoming that ships coal to Asia — wouldn’t be on the brink of bankruptcy after reporting a $718 million loss last week.

Let’s examine why the Washington Department of Ecology denied a water quality permit for the largest coal export terminal in North America. In its official decision the agency said it determined the proposed terminal near Longview, Wash., would have caused “significant and unavoidable harm” to air quality, vehicle and vessel traffic, rail capacity and safety, noise pollution, social and community resources, cultural and tribal resources.

If built, the project would have moved 44 million metric tons of coal annually. Coal would have been piled eight stories high and 50 football fields wide at the site.

The department said 16 slow-moving, 1.3-mile-long trains would have passed through Cowlitz County daily, compounding already significant traffic congestion during peak commute times and slowing emergency responders. The trains would also have delayed tribes’ access to fishing sites above Bonneville Dam.

Gray and other coal industry defenders couldn’t care less about the impacts the coal port terminal would have on Washington residents. They should just cowboy up to the increased diesel pollution, elevated cancer risks and degraded fisheries and thank Wyoming for making more jobs available!

How in the world does anyone have the audacity to think throwing the Wyoming economy a misguided bone should be Washington state’s primary concern?

Wyoming, Montana and the other four states that have sued Washington over stopping construction of the Longview coal port say its officials are using their regulatory authority solely to combat an industry they despise. The states make the legal argument that under the Constitution, Washington does not have the right to block international trade or interstate commerce.

But Earthjustice lawyer Kristen Boyles told Fox News last year that there’s nothing illegal about saying no to coal. “[Coal] does not have to go this particular way,” she noted. “There’s nothing in the Constitution that says products have to be shipped by the shortest route or the cheapest route.”

Boyles makes a great point. As does Inslee, who took a more global view of the problem in his 2007 book, “Apollo’s Fire: Igniting America’s Clean Energy Economy.”

The governor wrote, “Coal is killing us. If we fail to restrain growth of CO2 emissions all six billion of us on this little spaceship are at risk.”

When he announced at a news conference that his state was filing its 32nd lawsuit against the Trump administration over its dismantling of former President Obama’s Clean Power Plan, Inslee said, “We’re breathing smoke from Mississippi, we’re breathing smoke from the rest of the United States. We have an interest in reducing coal smoke from all over the United States.”

The Wyoming Legislature doesn’t need to throw another $250,000 into the legal fray. There are more than enough lawyers in many states already fighting this battle and it won’t be settled for several years.

Meantime, we shouldn’t forget that Wyoming is only a small part of our “little spaceship” called Earth, and our economy is not the only interest that matters in the grand scheme of things.

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 Casper and can be reached at [email protected]

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