Montana, North Dakota AGs Advocate Coal Export Terminals

Published December 17, 2013

Montana Attorney General Tim Fox and North Dakota Attorney General Wayne Stenehjem warned Washington state officials that if they conduct an overzealous environmental review of a proposed coal export terminal in Washington, it may violate the rights of coal producers in Montana and other states.

Rob McKenna, a Washington-based attorney hired by Fox and Stenehjem, submitted comments to Washington environmental officials, expressing concern about their pending review of a proposed coal export terminal near Longview, Washington.

History of Overzealous Review
McKenna noted Washington environmental officials were overzealous in the state’s recent review of a similar proposed coal export facility at Cherry Point in Whatcom County.

“Based on the Washington State Department of Ecology’s (“Ecology”) EIS scope for the Cherry Point Project, the States are concerned about Ecology’s impending scoping decision for the MBTL Project,” wrote McKenna. “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. The Cherry Point Project EIS scope of inquiry not only addresses indirect environmental impacts, but potential effects that are far removed from the decisions pending before Ecology and other agencies within Washington State.”

McKenna pointed out Washington officials imposed more stringent requirements than federal standards.

“The difference between Ecology’s approach and the approach of the U.S. government in connection with the Cherry Point Project demonstrates the difference between a reasonable scope and an unreasonable scope,” McKenna wrote.

“Ecology’s scope of review for the Cherry Point Project ranges far beyond the boundaries of legitimate state interest. The scoping decision for that proposal seeks information on coal use in China and other importing countries, the environmental impacts of resource extraction and transportation within and from the States, and other environmental impacts nationally and globally. The connection of these inquiries to Washington’s interest in health, safety and its own environment is indeterminate (and probably immeasurably small). The States do not believe that Washington State has articulated a legitimate state interest in connection with certain aspects of its scoping decision for the Cherry Point Project, including its climate change inquiries,” McKenna explained.

The Montana Department of Justice posted notice on its website stating a Longview terminal EIS similar to the Cherry Point EIS would, among other things, violate the U.S. Constitution’s Commerce Clause, preempt Congress’s exclusive right to regulate extraterritorial pollution, and usurp the federal government’s exclusive power to set foreign policy.

Public Hearings Draw Thousands
Washington environmental officials held five public meetings throughout the state to listen to comments on the proposed terminal. The meetings drew thousands of citizens, organizations, and businesses, supplementing 163,000 public comments submitted.

Potential to Stifle Economy
“As one of the most trade-dependent states in the nation, Washington knows full well the importance of access to global markets. Montana is simply asking that Washington regulators follow established law in conducting their reviews,” Fox said in a statement.

“Access to overseas markets is vital to Montana’s economy,” Fox added. “In addition to providing 1,300 direct jobs currently, coal mining provides a significant number of indirect jobs, generates tens of millions of dollars for Montana’s schools and local governments every year, and helps provide Montana state government with regular budget surpluses.”

Trent England, executive vice president at the Freedom Foundation, a Washington-based research institute dedicated to the principles of economic freedom, limited government, and individual responsibility, said the reviews have ignored the impacts of other energy sources while demonizing coal. “These environmental reviews disregard the fact that the coal will be shipped and may, in fact, provide marginally cleaner energy than what it replaces. They also disregard the human cost of denying cheap energy to the world’s poor,” England said.

“Windmills pulverize endangered birds, solar panels cook them, and dams make it more difficult for salmon to reproduce,” England explained. “There is no free lunch, and there is no perfect energy source. The fact that coal is not a perfect energy source simply is not a rational argument against using coal, or, in this case, allowing poor people in China to use coal.”

Alyssa Carducci ([email protected]) writes from Tampa, Florida.