Montana & Wyoming to WA: Permit Coal Export Terminals… Or Else

Sandy Robson guest writes this article. She is a professional worker who lives in Whatcom County and is concerned about our environment.

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The Powder River Basin (PRB) region in Southeast Montana and Northeast Wyoming is the single largest source of coal mined in the United States. Because the U.S. is phasing out burning coal due to the pollution it causes, Montana, home to numerous PRB coal companies desperate to get their coal to the momentarily still eager Asian marketplace, sent a contingent to Bellingham.

In February of this year, Yellowstone County Commissioner John Ostlund joined the President of the Montana Chamber of Commerce Webb Brown, and Vice President of the Montana Farm Bureau Federation Bruce Wright, for a trip to Bellingham to lobby support for their state’s coal industry. Montana coal companies want access to our state’s deep-water ports via two proposed coal export terminals: Gateway Pacific Terminal (GPT) at Cherry Point, and Millennium Bulk Terminals in Longview (MBTL). GPT, proposed by SSA Marine/Pacific International Terminals, and MBTL, proposed by Ambre Energy and Arch Coal, would respectively handle, store, and export 48 million tons, and 44 million tons of PRB coal annually, if built.

The Montana contingent’s trip was one part of a concerted effort to pressure Washington to get on-board the PRB coal train before the demand for toxic coal burns out completely. Montana feels the need for speed in the environmental review process for the two proposed coal export terminals in our state because Montana’s coal industry desperately needs one or both of those coal export terminals to be approved and built, ASAP.

Montana and North Dakota Hire Former Washington State AG Rob McKenna to Prepare EIS Comments for MBTL

Montana’s Attorney General (AG) Tim Fox and North Dakota AG Wayne Stenehjem have also been working to affect the EIS process and its outcome for the proposed coal terminals in Washington state. On November 20, 2013, a Billings Gazette article reported that AGs Fox and Stenehjem hired Orrick law firm of Seattle to have one of its partners, former Washington state AG Rob McKenna, prepare formal joint comments for the EIS scoping process for MBTL on behalf of Montana and North Dakota.
Since AGs are paid by their states to be the chief legal advisors to their states, one might wonder why the AGs of both Montana and North Dakota do not prepare their own state’s EIS comments for MBTL, and what their strategy would be in hiring the former AG from Washington state, who resides in Washington state, to write a joint EIS scoping comment on behalf of their states for the MBTL.

In his November 18, 2013 EIS comment, McKenna included the proposed GPT at Cherry Point, saying, “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 went on to rebuke the decision by the Washington State Department of Ecology (DOE) and Whatcom County (the state and local agencies assigned to the EIS for GPT) for demanding a broad environmental review for GPT. McKenna challenged Washington’s constitutional right to require a broad review of impacts of the coal export terminals. On behalf of Montana and North Dakota, McKenna’s comments appear to be an attempt to compel the DOE and Cowlitz County not to repeat the same decision. Additionally, McKenna wrote that Montana and North Dakota believe the decision calling for a broad EIS scope for GPT was erroneous, not legally justified, and that a similar decision for MBTL would also be erroneous.

The EIS comments regarding the MBTL proposal prepared by McKenna seem to lay the framework for a legal argument, which raises the question: Would Montana call on the Orrick law firm and McKenna for potential future litigation relating to regulatory and permit decisions for MBTL and/or GPT?

McKenna’s EIS comments claim that a scoping decision that delays, burdens, or prevents the completion of the MBTL project would burden or prevent interstate commerce. It’s ironic McKenna introduced interstate commerce as a potential legal argument, because the companies involved with both the GPT and MBTL proposals have maintained that only the impacts at the terminal sites themselves should be considered, and that the impacts from mining the PRB coal and railway transportation should not be considered.

Railways are the connector linking the coal sourced from the PRB mines to the proposed Pacific Northwest coal terminals. If interstate commerce is put forth as a legal argument for scoping decisions that could delay, burden, or prevent the completion of the projects, it could then be argued that the impacts along the railways which connect the PRB states’ coal mines to the proposed coal export terminals in the Pacific Northwest, should, in fact, be studied and considered.

Meanwhile, the coal industry and numerous politicians in Wyoming have also been busy in their efforts to gain access to Washington state deep-water ports through the proposed coal export terminals. Last fall, an October 23, 2013 Wyoming Tribune-Eagle article mentioned Republican Wyoming Governor Matt Mead’s trip at that time to South Korea and Taiwan. Mead’s trip was a trade mission that included discussions about the potential of exporting coal to Asia. After his trip, he said that both countries were eager to buy Wyoming coal—so much so, that according to Governor Mead, “Both countries are so interested in Wyoming coal that had I had coal on my person, I think they would have purchased it right then and there.” Instead of saddling the Pacific NW with dirty toxic coal export terminals, perhaps Governor Mead could load up his pockets and luggage full of PRB coal for future trips to South Korea and Taiwan, and sell it there door to door.

Wyoming Legislature Funds $500,000 Coal War Chest For Litigation Against Other States

A February 17, 2014 Washington Times article reported, “Wyoming [State] Representative Steve Harshman (R-Casper), chairman of the [Wyoming] House Appropriations Committee … recommends spending $500,000 during the coming two years to cover legal expenses if the state has to sue anyone — including possibly other states — to get access to deep water ports in the Northwest.”

According to Representative Harshman, “We want to make sure that we properly set aside funds, and also as a Legislature, send a statement: This is very important. We’re going to fight for it.”

The same Washington Times article reports Wyoming State Senator Eli Bebout (R-Fremont), chair of the Wyoming Senate Appropriations Committee, as saying Wyoming lawmakers toured the Northwest and saw organized opposition to Wyoming’s coal export plans. According to Senator Bebout, “The only way you might be able to resolve some of it is through litigation. . . So we’re setting it up. It’s so important to Wyoming to have access to those markets in the Far East.”

The 62nd Legislature of the State of Wyoming 2014 Budget Session passed HB 0001, which included the appropriation of $500,000 for, “Encouraging development of deep water ports to export Wyoming’s nonrenewable natural resources giving Wyoming the potential to institute or participate in legal action to secure the access of Wyoming nonrenewable natural resources to these deep water ports.” (page 114) The bill goes into effect July 1, 2014.

There is no question that there are some in Wyoming who are ready to do battle in their war for coal, and some are indignant about the decision made in February of this year by the Washington DOE and Cowlitz County calling for a broad review of the environmental impacts of the proposed MBTL in Longview. An example of this ire can be seen in a February 25, 2014 editorial in Wyoming’s Casper Star-Tribune by the newspaper’s editorial board. Below are excerpts from that editorial.

“Such a large-scale review isn’t really an effective way to determine environmental impacts. It’s a cynical, hypocritical way to kill the export terminal plans. We encourage officials in Washington to decide against the sweeping review, and we’re glad Wyoming lawmakers are considering allocating $500,000 for the state attorney general to fight the broader review. North Dakota, Montana and others already are fighting for a narrower review focus.

“The call for a more thorough review of the coal export terminal is simply a hypocritical tactic to delay or kill plans to build it, part of the broader scheme to kill off the use of coal. Such a review is unprecedented for a reason: It’s not an effective or valuable way to determine economic impacts. It’s unwieldy, highly speculative and political.”

But here on the coast, the people who will bear a lion’s share of the impacts, and who submitted over 124,000 EIS scoping comments for GPT, may well disagree with that assessment.