Nearby States Warn Wash. on Legality of Export Review

Manuel QuiƱones, E&E reporter

The attorneys general of Montana and North Dakota are questioning the legality of Washington state’s ongoing review of coal export terminal proposals there.

The Washington Department of Ecology decided this year to conduct a broad review of Gateway Pacific Terminal’s proposal near Cherry Point, including potential climate change impacts from burning coal overseas.

The agency may do the same with Ambre Energy Ltd. and Arch Coal Inc.’s Millennium Bulk Terminals. Public comments on the scope of that project’s review were due this week (Greenwire, Nov. 19).

Montana Attorney General Tim Fox and North Dakota Attorney General Wayne Stenehjem said such a broad review may trample on the rights of their states to export coal.

A comment letter said the Cherry Point scope of review 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.”

Former Republican Washington Attorney General Rob McKenna, now a partner at the firm Orrick, Herrington & Sutcliffe LLP, wrote the letter on behalf of the North Dakota and Montana officials.

McKenna told the Department of Ecology that pursuing its agenda could be trampling on the federal government’s role to regulate foreign relations and interstate commerce.

“The prohibition on state regulation of interstate commerce does not prohibit a state from imposing reasonable health, safety and environmental regulations,” he wrote. “Such regulations protect a recognized interest of the regulating state and are the least restrictive alternatives for achieving the state’s objective.”

But McKenna added, “In applying such regulations, a state is prohibited from discriminating against out-of-state commerce.”

Supporters of the coal export terminals have not filed any litigation against Washington state regulators for their scope of review. But McKenna’s comment letter signals a boost in the legal rhetoric.

Environmental groups, many state politicians and public health workers have applauded the Department of Ecology and jeered the Army Corps of Engineers for opting for more limited project-level reviews.

In a recent press release, Washington regulators said their review would “inform the public and decision makers about the impacts of the proposed projects. It will identify the potential environmental impacts from the proposed projects and various alternatives, and discuss possible mitigation measures.”

In his letter, McKenna also said, “In evaluating extraterritorial impacts, Washington should incorporate an analysis of economic and other benefits in Montana and North Dakota, as well as in the importing nations, like China.”

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