SCOTUS seeks DOJ’s views on interstate coal terminal dispute

By Annie Snider 10/05/2020 12:21 PM EDT

Supreme Court justices asked the federal government to weigh in as they contemplate whether to take up an interstate dispute over a proposed massive coal export terminal — a sign justices could be interested in the case.

The details: On the first day of its new term, the Supreme Court invited the solicitor general to file a brief expressing the United States’ views on the fight between Wyoming, Montana and Washington states over a coal export terminal that was intended to shepherd coal from the Powder River Basin to Asian markets but that was blocked by Washington state over environmental concerns.

Wyoming and Montana have asked the high court to take up the dispute, arguing that Washington violated the commerce clause of the Constitution by denying Millennium Bulk Terminals’ application for a water quality certification under Section 401 of the Clean Water Act. The case went directly to the Supreme Court thanks to original jurisdiction, which allows lawsuits between states to go bypass the lower courts.

The context: President Trump and his EPA have cited the Washington coal export terminal as an example of states overstepping their Clean Water Act authority, and the administration has advanced new rules limiting states’ ability to block energy infrastructure projects under the 1972 water law. Blue states, including Washington, are challenging those rules in court.

A lower court previously rejected claims similar to those raised by Wyoming and Montana in a 2018 case brought by coal company Lighthouse Resources and railroad BNSF. That decision that is currently on appeal with the 9th U.S. Circuit Court of Appeals.

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