By Natasha Geiling
May 5, 2018 - Good news has been hard to come by as of late for Lighthouse Resources Inc., a coal company that has been trying for years to build the largest coal export terminal in the United States. In the last year, state regulators in Washington have repeatedly denied the project key permits, leaving some to question whether the terminal will ever be built.
But now a few allies of Lighthouse Resources have stepped up to urge a court to overturn the state regulators’ denial. On Thursday, four major industry groups — the National Mining Association, the National Association of Manufacturers, the American Farm Bureau Federation, and the American Fuel & Petrochemical Manufacturers — submitted a brief to a federal court in Washington urging the court to overturn the state regulators’ permit denials.
“To do otherwise would be an invitation to states across the country to begin legislating their own foreign policy, in flat contradiction of the Framers’ plans and Supreme Court’s teachings and disrupting national and international trade policies of all sorts,” the brief read.
The groups argue that by denying permits for the construction of the terminal, state regulators are effectively acting as a veto power over certain kinds of industry that they don’t like. The regulators, for their part, have defended their decisions by arguing that Lighthouse Resources Inc. and Millennium Bulk Terminals — a bulk materials port owned by Lighthouse — have failed to make a compelling economic and environmental case for the terminal.
“After extensive study and deliberation, I am denying Millennium’s proposed coal export project,” Washington Department of Ecology Director Maia Bellon said in a press statement last September, when the state announced its decision to deny the project a crucial water quality permit. “There are simply too many unavoidable and negative environmental impacts for the project to move forward.”
In its final environmental impact study of the project, the Washington Department of Ecology found that the terminal would both significantly increase greenhouse gas emissions and disproportionately impact low-income and minority communities that live near the proposed site.
According to the study, the terminal — which would greatly increase train traffic through the community of Longview, bringing as many as 16 coal trains a day to local lines — would significantly increase the risk the rate of cancer near the terminal, due to increased diesel emissions from rail cars?. The proposed terminal site is located near a low-income and predominantly minority community, which the study estimated could see cancer rates increase from 30 cases for every million people annually to 50 cases for every million.
But the industry groups argue that since the export terminal is directly tied to both international and interstate trade — with coal coming from the Powder River Basin region of Wyoming and Montana and bound for overseas markets in Asia — state regulators are prohibited from intervening due to the Commerce Clause of the U.S. Constitution, which holds that only Congress can regulate trade.
The brief also argues that the Department of Ecology overstepped its mandate in denying the water quality permit because it is only supposed to consider how the project would impact the state’s water quality, not other environmental factors.
“The American Farm Bureau Federation joined the amicus brief because the legal issues raised in this case are much broader than this export facility and coal, they are important to agriculture as well,” Danielle Hallcom Quist, senior counsel for public policy with the American Farm Bureau Federation, told ThinkProgress via email.
“Agriculture is heavily dependent on foreign trade and access to port facilities, particularly on the West coast,” Hallcom Quist continued. “If a state were to oppose the export of agricultural products … through its borders, that decision would be very harmful to farmers and ranchers and valuable export markets that are critical to the agricultural economy.”
So far, supporters of the terminal have had mixed success in challenging the denial of the two permits in court. In October, a judge with the Cowlitz County Superior Court told the state Department of Natural Resources (DNR) to either approve a lease permit that it had previously denied the project, or explain its reasoning for the denial. The DNR appealed that decision, and that case is set to be heard by the state Pollution Control Board in late September.
In late April, however, the state Shoreline Hearings Board — which hears appeals pertaining to decisions that impact the state’s shoreline — rejected Millennium’s appeal of the two permit denials, agreeing with the state’s conclusion that the project would create unavoidable ecological harm.
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