No. ______, Orig
In the Supreme Court of the United
__________________

States

STATE OF MONTANA AND STATE OF WYOMING,
Plaintiffs,
v.
STATE OF WASHINGTON,
__________________

Defendant.

MOTION FOR LEAVE TO FILE BILL OF COMPLAINT,
BILL OF COMPLAINT, AND BRIEF IN SUPPORT
__________________
BRIDGET HILL
Wyoming Attorney General
JAY JERDE
Special Assistant
Attorney General
JAMES KASTE
Deputy Attorney General
ERIK PETERSEN
Senior Assistant
Attorney General
OFFICE OF THE WYOMING
ATTORNEY GENERAL
2320 Capitol Avenue
Cheyenne, WY 82002

TIMOTHY C. FOX
Montana Attorney General
JON BENNION
Chief Deputy Attorney General
MATTHEW T. COCHENOUR
Acting Solicitor General
OFFICE OF THE MONTANA
ATTORNEY GENERAL
215 N. Sanders St.
Helena, MT 59601

DALE SCHOWENGERDT
Counsel of Record
MARK STERMITZ
NEIL G. WESTESEN
JEFF J. OVEN
TIMOTHY STUBSON
CROWLEY FLECK PLLP
CROWLEY FLECK PLLP
111 W. 2nd Street
900 N. Last Chance Gulch
Suite 220
Suite 200
Casper, WY 82601
Helena, MT 59624
(406) 449-4165
dschowengerdt@crowleyfleck.com
Counsel for Plaintiffs

 i
TABLE OF CONTENTS
MOTION FOR LEAVE TO FILE
COMPLAINT IN ORIGINAL ACTION

BILL

OF

COMPLAINT
BRIEF IN SUPPORT OF MOTION FOR LEAVE TO
FILE BILL OF COMPLAINT IN ORIGINAL ACTION
APPENDIX

 No. ______, Orig
In the Supreme Court of the United
__________________

States

STATE OF MONTANA AND STATE OF WYOMING,
Plaintiffs,
v.
STATE OF WASHINGTON,
__________________

Defendant.

MOTION FOR LEAVE TO FILE
BILL OF COMPLAINT
__________________
The State of Montana and the State of Wyoming
respectfully move this Court for leave to file the
attached Bill of Complaint. The grounds for this Motion
are set forth in the accompanying Brief.

 Respectfully submitted,
BRIDGET HILL
Wyoming Attorney General
JAY JERDE
Special Assistant
Attorney General
JAMES KASTE
Deputy Attorney General
ERIK PETERSEN
Senior Assistant
Attorney General
OFFICE OF THE WYOMING
ATTORNEY GENERAL
2320 Capitol Avenue
Cheyenne, WY 82002
TIMOTHY STUBSON
CROWLEY FLECK PLLP
111 W. 2nd Street
Suite 220
Casper, WY 82601

TIMOTHY C. FOX
Montana Attorney General
JON BENNION
Chief Deputy Attorney General
MATTHEW T. COCHENOUR
Acting Solicitor General
OFFICE OF THE MONTANA
ATTORNEY GENERAL
215 N. Sanders St.
Helena, MT 59601
DALE SCHOWENGERDT
Counsel of Record
MARK STERMITZ
NEIL G. WESTESEN
JEFF J. OVEN
CROWLEY FLECK PLLP
900 N. Last Chance Gulch
Suite 200
Helena, MT 59624
(406) 449-4165
dschowengerdt@crowleyfleck.com

Counsel for Plaintiffs
JANUARY 21, 2020

 No. ______, Orig
In the Supreme

Court of the United States
__________________

STATE OF MONTANA AND STATE OF WYOMING,
Plaintiffs,
v.
STATE OF WASHINGTON,
__________________

Defendant.

BILL OF COMPLAINT
__________________
The States of Montana and Wyoming bring this
action against the State of Washington, and for their
cause of action assert as follows:
NATURE OF THE ACTION
1.
This is a Commerce Clause challenge to
Washington State’s discriminatory denial of port access
to ship Montana and Wyoming coal to foreign markets.
This case implicates an important purpose of the
Commerce Clause: prohibiting coastal states from
blocking landlocked states from accessing ports based
on the coastal states’ economic protectionism, political
machinations, and extraterritorial environmental
objectives. When Washington denied “with prejudice”
a Section 401 Water Quality permit for the Millennium
Bulk Terminal in Cowlitz County, it did so to protect
its own agricultural interests and because it objected,
as a matter of political posturing, to the commodity
that Wyoming and Montana sought to export: coal.

 2
2.
Washington State’s discrimination severely
impacts Montana and Wyoming. While domestic coal
production has declined in recent years, foreign
markets are booming. These markets desire the lowsulfur, cleaner-burning coal found in Montana’s and
Wyoming’s Powder River Basin. Asian markets have a
distinct need for Montana and Wyoming coal as they
seek to expand their electric generating capacity to
bring a higher quality of life to their populations and
replace problematic nuclear facilities. State officials in
Wyoming and Montana have made significant efforts to
promote the States’ coal resources in those Asian
markets. But without port access, Wyoming and
Montana are unable to export coal to these foreign
markets.
3.
Wyoming and Montana depend on taxes from
coal production to fund critical state and local
infrastructure and programs. Coal severance taxes and
other coal revenue generate hundreds of millions of
dollars annually in state revenue, and coal extraction
produces thousands of high-paying jobs. Without the
ability to maintain that revenue, the States would have
difficulty funding governmental programs, like K
through 12 education.
4.
With every passing year the problem is
exacerbated as Montana and Wyoming have fewer
markets for their massive coal reserves. Ironically,
without an opportunity to import low-sulfur, cleanerburning coal from Montana and Wyoming, Asian
markets turn to other sources of coal that do not burn
as clean and that ultimately harm the environment.

 3
5.
Washington’s efforts to block port access also
impact federal energy and security policies. The United
States has made it clear that exporting coal to Asia and
other global markets is key to boosting the American
economy and protecting our national security. The
previous Administration also stressed the importance
of coal exports, with President Obama calling the
United States “the Saudi Arabia of coal.” A key
component of the National Security Strategy is to boost
energy exports through coastal terminals like
Millennium Bulk.
6.
Washington, however, unilaterally blocked
port access because of: (1) its Governor’s and his
appointees’ discriminatory favoritism of Washington
products over Montana and Wyoming coal; (2) the
Governor’s political opposition to coal; and (3) perceived
extra-territorial environmental impacts of coal
combustion in foreign markets. Discriminating against
Montana and Wyoming coal for these reasons violates
both the Dormant Commerce Clause and the Foreign
Commerce Clause.
JURISDICTION
7.
This Court has original and exclusive
jurisdiction over this action under Article III, § 2, cl. 2
of the U.S. Constitution and 28 U.S.C. § 1251(a). “By
ratifying the Constitution, the States gave this Court
complete judicial power to adjudicate disputes among
them.” Texas v. New Mexico, 482 U.S. 124, 128 (1987).

 4
PARTIES
8.
Plaintiffs the State of Montana and the State
of Wyoming are sovereign States losing significant coal
severance taxes because of Washington State’s
discriminatory conduct. Montana brings this original
action through its Attorney General, Timothy C. Fox.
Wyoming brings this original action through its
Attorney General, Bridget Hill.
9.
Defendant State of Washington is a sovereign
State. Service on the Defendant the State of
Washington is made in this action on the Governor and
the Attorney General of Washington. Sup. Ct. R. 17, 29.
GENERAL ALLEGATIONS
MONTANA’S AND WYOMING’S COAL RESERVES AND
BOOMING FOREIGN DEMAND
10.
Montana and Wyoming have vast coal
reserves. Wyoming has a reserve base of 58.1 billion
tons and is the biggest producer in the country by far.
Montana has the largest recoverable coal reserve in the
country, measuring 118 billion tons, and is the sixth
largest producer.
11.
Both Wyoming and Montana depend heavily
on coal severance taxes and other taxes and fees
related to coal production to fund critical state and
local infrastructure and programs.
12.
Wyoming’s coal production generates
hundreds of millions of dollars each year in tax
revenue. Since 2007, Wyoming has generated
approximately $4.89 billion in severance and ad

 5
valorem taxes from coal production. Over ninety
percent of the coal Wyoming produces is shipped out of
state.
13.
Montana’s coal severance tax generates over
80 million dollars each year. Over seventy-five percent
of Montana coal is shipped out of state.
14.
Domestic demand for coal is declining, and
that decline will only increase as domestic coal-fired
plants near the end of planned life cycles and are not
being replaced with new facilities. The U.S. Energy
Information Administration estimates that coal
consumption in 2019 will reach a 40-year low and will
continue to decline in 2020.1
15.
As a result of reduced domestic demand,
Montana and Wyoming have significant excess coal
capacities. They are unable to transfer production to
the export market, however, because as land-locked
states they lack port capacity. Both States have
concluded, after substantial research, that the future
of the States’ coal production largely depends on
whether Asian markets are available through West
Coast port access.
16.
Asian coal markets are expanding and have
a distinct need and economic desire for the low-sulfur
Powder River Basin Coal in Montana and Wyoming.
1

U.S. Energy Information Administration, Short-Term Energy
Outlook (December 10, 2019), https://perma.cc/BB47-8RKA; see
also U.S. Energy Information Administration, Almost all U.S. Coal
Production Is Consumed for Electric Power (June 10, 2019) (noting
that domestic coal production exceeds consumption),
https://perma.cc/PL6Z-3X5V.

 6
Japan, Taiwan, South Korea, and China especially are
expanding coal-fired power stations. Japan is the third
largest coal-importing country in the world and its use
of coal, particularly considering recent failures related
to nuclear energy, is increasing. South Korea has
limited domestic energy resources and is expected to
become a large importer of U.S. coal, which is beneficial
for both economic and national security reasons.
17.
U.S. companies have already secured
prospective export contracts with South Korea, but
because of the limited ability to obtain U.S. coal, South
Korea has looked elsewhere, including Russia, which
has increased its coal exports to the country. These
Asian countries need to supply their expanding power
stations; if they are unable to get clean-burning coal
from Wyoming and Montana, they will get high sulfur
coal from other countries.
18.
Japan is also dependent on imports for its
energy, especially following the Fukushima nuclear
power plant accident. Japan is installing clean coal
plant technologies to meet environmental targets, and
it plans “to develop about 45 additional coal power
plants, adding more than 20 GW of capacity in the next
decade.”2 In 2016, Wyoming entered a five-year
Memorandum of Understanding (MOU) with the Japan
Coal Energy Center. The MOU contemplates the
parties’ cooperation in the facilitation of coal exports
and sales, which may include the development of new
U.S. coal export and Japanese coal import terminals,

2

U.S. Energy Information Administration, Japan: Overview
(February 2, 2017), https://perma.cc/B97V-UZTU.

 7
public support to existing export facilities together with
establishing sale contracts for Wyoming coal.
19.
Japan, like other Asian countries, has
identified Powder River Basin coal from Montana and
Wyoming as being particularly desirable for the
country’s next generation of high efficiency, low
emissions coal-fired power plants.
20.
Wyoming and Montana have made significant
efforts to expand coal exports to Asian markets. Both
States’ Governors have visited Asian countries to
promote the States’ coal. The States recognize that the
ability to export to Asian markets is critical to their
economic security, as well as production of high-paying
jobs in the States.
21.
Landlocked states like Montana and
Wyoming depend on port access on the West Coast to
get their most important commodities, like coal, to
foreign markets. The only currently available port to
ship Wyoming and Montana coal to foreign markets is
in British Columbia, Canada. The facility is already at
maximum capacity. Although proposals for port
terminals have been investigated in Oregon and
California, none of those proposals has materialized.
WASHINGTON’S DENIAL OF PORT ACCESS FOR
WYOMING AND MONTANA COAL EXPORTS
22.
Lighthouse Resources, which is a coal energy
supply chain company that operates mines in Montana
and Wyoming, proposed to convert a contaminated
former aluminum smelter site in Cowlitz County,
Washington on the lower Columbia River into a
transloading facility called Millennium Bulk Terminal.

 8
23.
The U.S. Department of Transportation has
designated the Columbia River as a Marine Highway
for the transportation of commerce. Congress
authorized an expenditure of over $180 million to
deepen the river to accommodate increased export and
import growth.
24.
Washington recognizes that it “is a gateway
state, connecting Asian trade to the U.S. economy,” and
that “[m]any states are [] dependant on the ports in
Washington to import and export freight.”3 In addition
to the significant federal investment in the Columbia
River to facilitate United States exports, Washington
boasts that “ports in Washington have several
significant advantages, including natural deep-water
harbors on the coasts, a West Coast location close to
Asian markets, and strong connections to Freight
Economic Corridors.”4
25.
Washington’s geography allows it to use its
ports for its own economic stability and
competitiveness while denying those benefits to
interior states like Montana and Wyoming.
Washington is one of the most trade-dependent states
in the Nation, with total imports and exports valued at
$126.8 billion in 2016 alone.5

3

Washington State Department of Transportation, 2017
Washington State Marine Ports and Navigation Plan, 1-2,
https://perma.cc/6D7S-RC25.
4

Ibid.

5

Id. at 2.

 9
26.
Most of the coal that would be exported from
the Millennium Bulk Terminal would be from the
Powder River Basin in Montana and Wyoming. The
Millennium Bulk Terminal would have the capacity to
ship 44 million metric tons of coal per year, which
would be transported from Montana and Wyoming by
rail, and then exported to foreign markets.
27.
The Millennium Bulk Terminal permitting
process began in 2012 and included an application for
water quality certification under Section 401 of the
Clean Water Act (33 U.S.C. § 1341). The Clean Water
Act seeks to “recognize, preserve, and protect the
primary responsibilities and rights of States to prevent,
reduce, and eliminate [water] pollution.” 33 U.S.C.
§ 1251(b). As part of that process, the Washington
Department of Ecology (“Ecology”), Cowlitz County,
and the United States Army Corp of Engineers initially
sought to undertake a joint Environmental Impact
Statement (“EIS”). The Washington Department of
Ecology, however, demanded that the EIS include
within its study area an analysis of the impact and
global greenhouse effect of emissions from the
combustion of coal in foreign markets. See EIS, Section
1.3; 2.1.
28.
When assessing permitting decisions and the
environmental impacts of a proposal, Washington state
law explicitly requires that agencies assess the end use
of products exported from Washington ports. “In
assessing the significance of an impact, a lead agency
shall not limit its consideration of a proposal’s impact
only to those aspects within its jurisdiction, including
local or state boundaries.” WAC 197-11-060(4)(b); see

 10
also RCW 43.21C.030(1)(f) (requiring agencies to
“[r]ecognize the worldwide and long-range character of
environmental problems.”).
29.
Pursuant to that authority, the Governor’s
Director of the Department of Ecology stated that a
broader and more rigorous scope of review for an EIS
involving a terminal to export coal is justified because
of “the end use of [the] product” and that “there is no
speculation as to the end use of the exported coal; it
will be combusted for thermal power” and because it
will “increase[e] America’s total export of coal.” App.
96-97. Because of Washington’s insistence that the EIS
have a broad scope of analysis and include extraterritorial impacts of coal combustion on greenhouse
gas emissions, the Corp of Engineers decided that it
could not participate in a joint EIS. App. 83.
30.
Washington treated the Millennium Bulk
Terminal very differently from other ports served by
the same rail line. The State did not subject other
projects at the Terminal to expanded environmental
review like it did the Millennium Bulk Terminal. It is
undisputed that the only reason that Washington
imposed expanded and ultimately unfair
environmental review and scrutiny was because the
commodity that the Millennium Bulk Terminal will
ship is coal. App. 53-55; App. 89-93.
31.
For example, the Governor promised
Washington-based Boeing that the scope of
environmental review for one of its projects would be
much different because it did not involve coal. The
Governor’s talking points for a meeting with Boeing
stated “Let me be clear that the next generation of 777x

 11
wings is a very different commodity than coal. Based on
what we know about the 777x at this time, we would
expect a much different SEPA approach would apply to
a proposed 777x project.” App. 63. Because “State law
discourages greenhouse gas pollution and coal power,”
ports shipping coal to Asia and other international
markets would be subject to heightened review. Ibid.
32.
The State of Washington has made itself a
gatekeeper for interstate and international commerce
based on what it alone concludes are good
environmental policies beyond its borders. The
Governor confirmed that the degree of scrutiny for
environmental reviews under the State Environmental
Policy Act (“SEPA”) was dependent on the end use of
the commodity that would be shipped from
Washington’s terminals. If a product, in Washington’s
view, increased greenhouse gas emissions, it would not
be permitted.
33.
After four years of review, Washington and
Cowlitz County published the EIS in April, 2017. The
EIS identified nine potential environmental impacts
that could result from construction and operation of the
Millennium Bulk Terminal. App. 52. Cowlitz County,
which was co-lead on the EIS, stressed that the EIS
described only potential impacts and that they were
capable of mitigation or elimination. Ibid. Cowlitz
County concluded that the EIS described a fully
permittable project. App. 55.
34.
For purposes of the Section 401 water quality
certification, the EIS concluded that “[t]here would be
no unavoidable and significant adverse environmental
impacts on water quality.” EIS, Section 4.5.8. For all

 12
but one potential impact, the EIS recognized that
mitigation or infrastructure improvements would
resolve any potential adverse impacts. Air quality was
the only impact needing additional mitigation plans
because it was a last-minute addition to the EIS and
there had been insufficient opportunity to address
mitigation. App. 56.
35.
In response to the EIS and additional
comments that needed to be reviewed, the Washington
Department of Ecology planned to deny the Section 401
water quality certification “without prejudice,” which
was the Department’s usual practice when still
evaluating information before an impending
certification deadline. App. 5. Following a denial
without prejudice, an applicant may resubmit a water
quality certification application, and the Department of
Ecology could complete any review within the new
timeframe. The Department of Ecology drafted a letter
denying the Section 401 Certification “without
prejudice.” The draft letter was signed and was
prepared to be sent by certified mail. App. 1.
36.
Before the letter was sent, the Department
sent a copy to the Governor’s office. App. 78-79. In
response, the Governor’s office asked that the
Department delay sending the letter. App. 80-81. The
Governor’s political appointee at the Department of
Ecology then took over the process and drafted a new
letter denying the Section 401 water quality
certification “with prejudice” for a variety of reasons
not addressed in the letter prepared by career
professionals at the Department of Ecology. App. 7, 45.
The new reasons for denying the permit included

 13
impacts from train traffic, vehicle congestion, noise and
vibration, rail safety, and air quality. These potential
impacts, however, were addressed in the EIS as either
capable of mitigation or elimination. App. 52.
37.
The State denied the water quality
certification based on the State Environmental
Protection Act (“SEPA”), which is the state version of
the National Environmental Policy Act (“NEPA”).
Washington employed what the State calls
“substantive SEPA authority” which grants broad
discretion to deny a permit for a variety of reasons.
RCW 43.21C.060. Upon information and belief, the
denial of the permit for the Millennium Bulk Terminal
was the first time in Washington’s history that it had
used substantive SEPA authority to deny a permit.
38.
The co-lead of the EIS, Cowlitz County,
charged the State with denying the water quality
certification based on pretextual reasons that did not
accurately reflect the EIS or the potential impacts and
mitigation plans it identified, and that the application
would have been approved if the Millennium Bulk
Terminal sought to export anything but coal. App. 53.
39.
In defending its denial of the Section 401
Water Quality Certification, it became clear that the
State denied the permit in part to protect Washington’s
own agricultural interests. The State justified the
denial because the “Millennium proposal would only
ship coal, there would be no apples. No agricultural
products from Washington would be handled at the
site.” App. 71. The State claimed that “increased coal
trains from the Millennium proposal would compete
with rail shipments of other goods, including

 14
Washington’s important agricultural products.” Ibid;
see also App. 71.
40.
The State argued that the Millennium
Terminal would not boost Washington’s Agricultural
exports, claiming that “[t]he opposite is probably true.
The Millennium coal proposal could harm farmer’s
ability to get their commodities to market by increasing
Washington’s rail traffic on a line that would already
be over capacity.” App. 72.
41.
When Governor Inslee was asked at a press
conference whether he felt “any sympathy for Montana
and Wyoming who are trying to get an important
product, coal, to market,” he said “no” because “apple[s]
[are] healthy, eating coal smoke [] is not.”6
42.
Governor Inslee has repeatedly targeted
prohibiting port access for Montana and Wyoming coal
as a key campaign issue. In his first press conference,
the Governor declared that “there are ramifications
ultimately if we burn the enormous amounts of Powder
River Basin coal that are exported through our ports.”
He said that the permitting decisions for those ports
would be the largest decision for the state during his
lifetime.7

6

Governor’s Press Conference On Clean Power Plan, 29:48-30:23,
https://perma.cc/HLF8-K4N6.

7

Jessica Goad, Governor Inslee Calls Coal Exports “The Largest
Decision We Will Be Making as a State from a Carbon Pollution
S t a n d p o i n t , ” T h i nkProgress (January 22, 2013),
https://perma.cc/8GBE-QMVK.

 15
43.
The Governor’s office also suggested that
Washington could tolerate emissions from the
aerospace industry because it “brings thousands of jobs
with those emissions; coal export doesn’t.” App. 65.
44.
Washington also denied the permit because
of the Governor’s bias against coal and his unjustified
extraterritorial concerns that shipments of coal to
overseas markets would increase greenhouse gas
emissions. That fact is reflected in the State’s
insistence that the EIS include a study of global
greenhouse gas emissions by Asian markets, as well as
public statements made by State officials.
45.
Without port access, the landlocked states of
Wyoming and Montana are unable to access overseas
markets for one of the States’ most important
commodities and one of the biggest drivers of their
economies. As a result, Montana and Wyoming are
suffering direct injury by losing tens of millions of
dollars each year in taxes and fees from coal production
and losing thousands of high paying jobs in the coal
industry.
46.
Meanwhile, Washington can export nearly 35
million bushel cartons of apples to more than 60
countries around the world, simply because it is a State
with port access.8 The effectiveness of the State’s port
access was made possible by significant federal
investment in making the Columbia River suitable for
large-scale export. Washington has blocked Montana
and Wyoming from engaging a similar export market
8

See Washington Apple Commission, Washington Export
Marketing- Overview, https://perma.cc/MT5A-MR3Y.

 16
simply because the State wants to protect its own
agricultural interests and because it has a political
objection to the commodity that Wyoming and Montana
seek to export: coal.
Count I- Violation of the Dormant Commerce
Clause
47.
Paragraphs 1 to 46 are incorporated by
reference as if set forth fully here.
48.
The Commerce Clause of the U.S.
Constitution, Article I, § 8, prohibits States from
engaging in discriminatory or protectionist actions
against other States. The Commerce Clause also
prohibits a State from regulating conduct outside its
borders or placing an undue burden on interstate
commerce.
49.
Washington’s denial of a Section 401 Water
Quality certification was based on protecting the
State’s own agricultural interests, the political
concerns and aspirations of its Governor, and because
of extraterritorial and unfounded concerns that coal
exports from Wyoming and Montana would increase
greenhouse gas emissions in Asia.
50.
Washington is seeking to regulate
conduct—the export and combustion of coal in foreign
markets—that is wholly outside its borders.
51.
Washington denied the Section 401 Water
Quality certification because of Washington officials’
political opposition to the commodity sought to be
exported from Montana and Wyoming: coal.

 17
52.
Washington has intentionally discriminated
against the landlocked States of Montana and
Wyoming and has effectively blocked port access for
these States to get one of their most important
commodities to market.
53.
Washington’s discriminatory action against
Wyoming and Montana coal for political purposes and
to protect its own economic interests is per se invalid.
54.
Washington’s
discriminatory
and
protectionist actions are imposing a heavy burden on
Montana and Wyoming, including the loss of significant
coal severance and other taxes generated by coal
production and sale.
55.
Washington’s
protectionist
actions
discriminate against Wyoming and Montana and
impose a heavy burden on interstate commerce.
56.
The burdens on interstate commerce imposed
by Washington’s decision to block Wyoming and
Montana’s port access are excessive in relation to
putative local benefits.
57.
Wyoming and Montana therefore seek
declaratory and injunctive relief holding that
Washington’s actions are invalid under the Commerce
Clause.
Count II- Violation of the Foreign Commerce
Clause
58.
Paragraphs 1 to 57 are incorporated by
reference as if set forth fully here.

 18
59.
The Foreign Commerce Clause of the U.S.
Constitution, Article I, § 8, cl. 3, prohibits States from
regulating foreign commerce, especially when it is at
odds with the foreign policy of the United States
Government.
60.
Increasing U.S. energy exports, especially
coal, is an important policy goal of the federal
government. Exporting coal to Asia and other global
markets is a key federal priority to boost the American
economy and advance national security interests.
61.
Realizing federal investment in coastal ports
like Washington’s by expanding American energy
exports, including coal, is a key foreign policy goal of
the United States.
62.
Washington State’s decision to deny port
access for coal exports based on protecting its own
agricultural interests and based on its extraterritorial
concerns about greenhouse gas emissions infringes on
the Federal Government’s exclusive role to regulate
foreign commerce.
63.
Washington’s actions have created a risk of
conflict with foreign governments that rely on reliable
export of Powder River Basin coal from Wyoming and
Montana.
64.
Washington’s discriminatory actions have
impeded Wyoming’s and Montana’s ability to engage in
foreign commerce.
65.
Wyoming and Montana therefore seek
declaratory and injunctive relief holding that

 19
Washington’s actions are invalid under the Foreign
Commerce Clause.
PRAYER FOR RELIEF
A. Declare that Washington’s discrimination against
Wyoming and Montana coal exports violates the
Dormant Commerce Clause;
B. Preliminarily and permanently enjoin Washington
from engaging in protectionist and discriminatory
actions in its permitting decisions for the
Millennium Bulk Terminal and from basing its
permitting decisions on extraterritorial factors;
C. Preliminarily and permanently enjoin Washington
from denying the Clean Water Act Section 401
Water Quality Certification on grounds unrelated to
water quality;
D. Award costs and reasonable attorneys’ fees to the
Plaintiff States;
E. Grant such other relief as the Court deems just and
proper.

 20
Respectfully submitted,
BRIDGET HILL
Wyoming Attorney General
JAY JERDE
Special Assistant
Attorney General
JAMES KASTE
Deputy Attorney General
ERIK PETERSEN
Senior Assistant
Attorney General
OFFICE OF THE WYOMING
ATTORNEY GENERAL
2320 Capitol Avenue
Cheyenne, WY 82002
TIMOTHY STUBSON
CROWLEY FLECK PLLP
111 W. 2nd Street
Suite 220
Casper, WY 82601

TIMOTHY C. FOX
Montana Attorney General
JON BENNION
Chief Deputy Attorney General
MATTHEW T. COCHENOUR
Acting Solicitor General
OFFICE OF THE MONTANA
ATTORNEY GENERAL
215 N. Sanders St.
Helena, MT 59601
DALE SCHOWENGERDT
Counsel of Record
MARK STERMITZ
NEIL G. WESTESEN
JEFF J. OVEN
CROWLEY FLECK PLLP
900 N. Last Chance Gulch
Suite 200
Helena, MT 59624
(406) 449-4165
dschowengerdt@crowleyfleck.com

Counsel for Plaintiffs
JANUARY 21, 2020

 No. ______, Orig
In the Supreme Court of the United
__________________

States

STATE OF MONTANA AND STATE OF WYOMING,
Plaintiffs,
v.
STATE OF WASHINGTON,
__________________

Defendant.

BRIEF IN SUPPORT OF MOTION FOR LEAVE
TO FILE BILL OF COMPLAINT
__________________

 i
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . v
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I.

Montana’s and Wyoming’s Large Reserves of
Low-Sulfur Coal Generate Critical State
Revenue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II.

Though Domestic Consumption of Montana
and Wyoming Coal Has Declined,
International Demand is Increasing . . . . . . . 4

III.

The Present Controversy – Washington
Blocks Montana and Wyoming from
Exporting Coal. . . . . . . . . . . . . . . . . . . . . . . . . 7

IV.

Washington Denied the 401 Certification
Because of Its Political Objection to Coal and
Because of Its Own Economic Self-Interest . 12

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
I.

The Seriousness and Dignity of Montana’s
and Wyoming’s Claims Warrants Exercise of
the Court’s Original Jurisdiction . . . . . . . . . 18
A. Washington’s Embargo of Montana and
Wyoming Coal is Per Se Invalid Under
the Dormant Commerce Clause . . . . . . . 22

 ii
1. Washington’s Obstruction of Port
Access to Benefit Its Own Economic
Interests at the Expense of Other
States Violates The Dormant
Commerce Clause . . . . . . . . . . . . . . . . 24
2. Washington’s Obstruction of Port
Access Based on Political
Discrimination Violates the Dormant
Commerce Clause . . . . . . . . . . . . . . . . 26
B. The Foreign Commerce Clause Requires
Heightened Scrutiny When States Impact
Foreign Trade in Contravention of U.S.
Foreign Policy. . . . . . . . . . . . . . . . . . . . . . 31
II.

Montana and Wyoming Have No Alternative
Forum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
APPENDIX
Appendix A Draft Letter to Millennium Bulk
Terminals-Longview, LLC from State
of Washington, Department of Ecology
(September 6, 2017) . . . . . . . . . . . App. 1
Appendix B Letter to Millennium Bulk TerminalsLongview, LLC from State of
Washington, Department of Ecology
(September 26, 2017) . . . . . . . . . . App. 7
Appendix C Order #15417 in the Matter of
Denying Section 401 Water Quality
Certification
(September 26, 2017) . . . . . . . . . . App. 9

 iii
Appendix D Letter to Millennium Bulk TerminalsLongview, LLC from State of
Washington, Department of Ecology
(October 23, 2017) . . . . . . . . . . . . App. 45
Appendix E Declaration of Elaine Placido, Director
of Community Services, Cowlitz
County in the United States District
Court, Western District of Washing at
Tacoma, No. 3:18-cv-05005-RJB
(February 28, 2018) . . . . . . . . . . App. 49
Appendix F E-mails RE: Gov’s call with Boeing on
July 25 and ghg emission triggers
(March 2, 2013–July 24, 2013) . App. 62
Appendix G E-mails RE: WPPA 2013 Economic
Development Agenda
(February 6, 2013) . . . . . . . . . . . App. 67
Appendix H Draft Key Messages/Q&A– Millennium
Bulk Terminal- Longview, Debunking
the myth that coal proposal would
boost ag exports. . . . . . . . . . . . . . App. 71
Appendix I

E-mails RE: “apples to coal” comparison
(November 30, 2016) . . . . . . . . . . App. 75

Appendix J E-mails RE: Please read - For your
information
(September 6, 2017) . . . . . . . . . . App. 78
Appendix K E-mails RE: Your Upcoming Briefing
with Governor
(September 7, 2017) . . . . . . . . . . App. 80

 iv
Appendix L E-mail RE: Meeting Ref Bulk
Commodity Terminal NEPA/SEPA
Process/Products (Unclassified)
(August 16, 2013) . . . . . . . . . . . . App. 83
Appendix M Letter to the Honorable Doug Ericksen
from State of Washington,
Department of Ecology
(August 22, 2013) . . . . . . . . . . . . App. 87

 v
TABLE OF AUTHORITIES
CASES
Baldwin v. G.A.F. Seelig, Inc.,
294 U.S. 511 (1935). . . . . . . . . . . . . . . . . 27, 28, 29
Bowman v. Railway Co.,
125 U.S. 465 (1888). . . . . . . . . . . . . . . . . . . . . . . 19
Brown-Forman Distillers Corp. v. N.Y. State
Liquor Auth., 476 U.S. 573 (1986) . . . . . . . . 25, 26
C & A Carbone, Inc. v. Town of Clarkstown, N.Y.,
511 U.S. 383 (1994). . . . . . . . . . . . . . . . . . . . 28, 29
Commonwealth Edison Co. v. Montana,
453 U.S. 609 (1981). . . . . . . . . . . . . . . . . . . . . . . . 3
Comptroller of Treasury of Md. v. Wynne,
575 U.S. 542 (2015). . . . . . . . . . . . . . . . . . . . . . . 24
Container Corp. of Am. v. Franchise Tax Bd.,
463 U.S. 159 (1983). . . . . . . . . . . . . . . . . . . . . . . 32
Cooley v. Bd. of Wardens,
53 U.S. 299 (1851). . . . . . . . . . . . . . . . . . . . . . . . 31
Dean Milk Co. v. Madison,
340 U.S. 349 (1951). . . . . . . . . . . . . . . . . . . . . . . 25
Georgia v. Pennsylvania R.R.,
324 U.S. 439 (1945). . . . . . . . . . . . . . . . . . . . . . . 17
Gibbons v. Ogden,
22 U.S. 1 (1824). . . . . . . . . . . . . . . . . . . . 18, 19, 24
Granholm v. Heald,
544 U.S. 460 (2005). . . . . . . . . . . . . . . . . . . . 21, 25

 vi
H.P. Hood & Sons, Inc. v. Du Mond,
336 U.S. 525 (1949). . . . . . . . . . . . . . 25, 27, 28, 30
Healy v. Beer Inst.,
491 U.S. 324 (1989). . . . . . . . . . . . . . . . . . . . . . . 29
Hunt v. Washington State Apple Advertising
Comm’n, 432 U.S. 333 (1977) . . . . . . . . . . . . . . . 25
Illinois v. City of Milwaukee, Wis.,
406 U.S. 91 (1972). . . . . . . . . . . . . . . . . . . . . . . . 35
Japan Line, Ltd. v. Los Angeles Cty.,
441 U.S. 434 (1979). . . . . . . . . . . . . . . . . . . . . . . 31
Kraft Foods, Inc. v. Iowa Dep’t of Revenue
and Finance, 505 U.S. 71 (1992) . . . . . . . . . . . . 32
Lighthouse Resources v. Inslee,
No. 3:18-cv-05005-RJB (W.D. Wash.
January 3, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . 16
Maryland v. Louisiana,
451 U.S. 725 (1981). . . . . . . . . . . . . . . . . . . . 19, 20
Michelin Tire Corp. v. Wages,
423 U.S. 276 (1976). . . . . . . . . . . . . . . . . . . . . . . 24
Mississippi v. Louisiana,
506 U.S. 73 (1992). . . . . . . . . . . . . . . 17, 18, 22, 35
Nat. Foreign Trade Council v. Natsios,
181 F.3d 38 (1st Cir. 1999) . . . . . . . . . . . . . . . . . 31
New Energy Co. of Ind. v. Limbach,
486 U.S. 269 (1988). . . . . . . . . . . . . . . . . . . . . . . 24

 vii
Oregon Waste Sys., Inc. v. Dept. of Environmental
Quality of State of Oregon,
511 U.S. 93 (1994). . . . . . . . . . . . . . . . . . . . . 23, 25
Pennsylvania v. West Virginia,
262 U.S. 553 (1923). . . . . . . . . . . . . . . . . . . . . . . 19
Philadelphia v. New Jersey,
437 U.S. 617 (1978). . . . . . . . . . . . . . . . . . . . . . . 25
Pike v. Bruce Church, Inc.,
397 U.S. 137 (1970). . . . . . . . . . . . . . . . . . . . . . . 31
S. Pac. Co. v. Arizona,
325 U.S. 761 (1945). . . . . . . . . . . . . . . . . . . . . . . 26
South-Central Timber Development, Inc. v.
Wunnicke, 467 U.S. 82 (1984). . . . . . . . . . . . . . . 32
Tennessee Wine and Spirits Retailers Assoc. v.
Thomas, 139 S. Ct. 2449 (2019) . . . . . . . 22, 24, 25
Texas v. New Mexico,
482 U.S. 124 (1987). . . . . . . . . . . . . . . . . . . . . . . 17
West Lynn Creamery, Inc. v. Healy,
512 U.S. 186 (1994). . . . . . . . . . . . . . . . . . . . . . . 29
West v. Kansas Nat. Gas Co.,
221 U.S. 229 (1911). . . . . . . . . . . . . . . . . . . . . . . 19
Wyoming v. Oklahoma,
502 U.S. 437 (1992). . . . . . . . . . . . . . . . . . . passim
CONSTITUTION AND STATUTES
U.S. Const. art. I, § 8, cl. 3 . . . . . . . . . . . . . . . . . 22, 31
U.S. Const. art. III, § 2, cl. 2 . . . . . . . . . . . . . . . . . . 17

 viii
28 U.S.C. § 1251(a). . . . . . . . . . . . . . . . . . . . . . . 17, 35
33 U.S.C. § 1341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Mont. Code Ann. §§ 15-35-101-122 . . . . . . . . . . . . . . 3
RCW 43.21C et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
RCW 43.21C.030(1)(f) . . . . . . . . . . . . . . . . . . . . 10, 28
WAC 197-11-060(4)(b) . . . . . . . . . . . . . . . . . . . . . 9, 28
Wyo. Stat. §§ 39-14-101-111 . . . . . . . . . . . . . . . . . . . 3
EXECUTIVE ORDER
Executive Order 13783 (March 28, 2017) . . . . . . . . 33
OTHER AUTHORITIES
Advancing U.S. Coal Exports, National Coal
Council, (October 22, 2018),
https://perma.cc/MR7C-RJE7 . . . . . . . . . . . . . . . 33
Advancing U.S. Coal Exports An Assessment of
Opportunities to Enhance U.S. Coal, National
Coal Council, https://perma.cc/L9CV-L5PA. . . . 34
Black’s Law Dictionary (8th ed. 2004) . . . . . . . . . . 18
Cascadia Law Group PLLC, Reducing Impacts from
Fossil Fuel Projects Report to the Whatcom
County Council, February 12, 2018 . . . . . . . . . . 27

 ix
Gabe Collins and Andrew Erickson, Wyoming and
Montana Could Become Major New Coal
Suppliers to China and the Asian Market—If
they Can Obtain Port Access, China SignPost,
(September 4, 2012), https://perma.cc/B559EJ3L . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
David Farenthold and Michael Shear, As Obama
Visits Coal Country, Many Are Wary of His
Environmental Policies, Washington Post (April
25, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Allison Frost, Report Highlights Economic Benefits
of Deeper Columbia, Think Out Loud (July 6,
2015), https://perma.cc/9DXH-XWMW . . . . . . . . 8
Josh Galemore, Japan Presents Opportunity for
Powder River Basin Coal, Casper Star Tribune
(October 22, 2018), https://perma.cc/5665-RRPT
........................................ 6
Jessica Goad, Governor Inslee Calls Coal Exports
“The Largest Decision We Will Be Making as a
State from a Carbon Pollution Standpoint,”
T h i n k Pr o gr e s s ( J a n u a r y 2 2 , 2 0 1 3 ) ,
https://perma.cc/8GBE-QMVK . . . . . . . . . . . . . . 13
Governor’s Press Conference On Clean Power Plan,
https://perma.cc/HLF8-K4N6 . . . . . . . . . . . . . . . 14
International Energy Agency, Market Report SeriesCoal 2018, Key Findings, https://perma.cc/RXA23LSL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

 x
James Madison’s Preface to Debates in the
Convention of 1787, reprinted in Records of the
Federal Convention of 1787 (M. Farrand ed.
1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Jay Inslee for Governor, Rejecting New Fossil Fuel
Infrastructure, https://perma.cc/68CV-AY9U . . 14
Letter from James Madison to Professor Davis,
reprinted in The Founders’ Constitution, Volume
2, Article 1, Section 8, Clause 3, Document 21 . 23
Letter from Rick Perry to Greg Workman, (January
7, 2018), https://perma.cc/P993-YA6U . . . . . . . . 33
Bill Lucia, With West Coast States Blocking Coal
Export Projects, Proponents Keep Pushing, Route
Fifty (November 19, 2019),
https://perma.cc/MJ66-5BEA . . . . . . . . . . . . 15, 27
Maritime Administration, America’s Marine
Highway, https://perma.cc/H7NC-37Z3 . . . . . . . . 8
Millennium Bulk Terminals-Longview, Final SEPA
Environmental Impact Statement (April 2017) . 8
Millennium Bulk Terminals-Longview SEPA
Environmental Impact Statement, SEPA
Greenhouse Gas Emissions Technical Report,
https://perma.cc/2HG5-APJA . . . . . . . . . . . . . . . 10
Montana Board of Land Commissioners Agenda,
https://perma.cc/7GA3-9LKJ . . . . . . . . . . . . . . . . 4
Montana Department of Environmental Quality,
Understanding Energy in Montana 2018,
https://perma.cc/5B83-XGZV . . . . . . . . . . . . . . . . 5

 xi
Montana Environmental Quality Council, Final
Report to the 66th Montana Legislature, 15 (June
2018), https://perma.cc/P8EF-7X76 . . . . . . . . . . . 3
Montana Environmental Quality Council, Montana
Department of Revenue Biennial Report, July 1,
2016-June 30, 2018, https://perma.cc/KA2TGLMJ. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
National Mining Association, U.S. Reserves by State
and Type-2016 (November 2017),
https://perma.cc/2YJP-J3XE. . . . . . . . . . . . . . . . . 3
Press Release, Mechel Signs Long-Term Coal
Supply Contract with South Korea’s STX
Corporation, (October 17, 2019),
https://perma.cc/FL92-AVRH . . . . . . . . . . . . . . . . 7
Remarks by President Trump at the Unleashing
American Energy Event (June 29, 2017),
https://perma.cc/HS43-Z9PK . . . . . . . . . . . . . . . 32
Right of Access of Land-Locked States to and from
the Sea and Freedom of Transit, United Nations
Convention on the Law of the Sea . . . . . . . . . . . 23
Benjamin Storrow, Is Inslee the climate choice?
First he must pass something, E&E News,
(January 18, 2019), https://perma.cc/3ND6M5SP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Laurence H. Tribe, American Constitutional Law
(2d ed. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

 xii
U.S. Energy Information Administration, Almost all
U.S. Coal Production Is Consumed for Electric
Power (June 10, 2019) (noting that domestic coal
production exceeds consumption),
https://perma.cc/PL6Z-3X5V. . . . . . . . . . . . . . . . . 5
U.S. Energy Information Administration, Annual
Coal Report 2017, Table 36 . . . . . . . . . . . . . . . . 33
U.S. Energy Information Administration, FAQ
about Coal, https://perma.cc/G4V2-NEJ3 . . . . . . 2
U.S. Energy Information Administration, ShortTerm Energy Outlook (December 10, 2019),
https://perma.cc/BB47-8RKA . . . . . . . . . . . . . . . . 5
U.S. Energy Information Administration, U.S. coal
consumption in 2018 expected to be the lowest in
39 years (December 4, 2018),
https://perma.cc/C5VR-ZGMF . . . . . . . . . . . . . . . 5
Will Wade, California City Bans Coal, Blocking Key
Export Route to Asia, Bloomberg News (January
14, 2020), https://perma.cc/7N8Z-MP24. . . . . . . 15
Washington State Department of Transportation,
2017 Washington State Marine Ports and
Navigation Plan, https://perma.cc/6D7S-RC25
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9
Frank Wolak, Assessing the Impact of the Diffusion
of Shale Oil and Gas Technology on the Global
Coal Market, Stanford.edu (November 7, 2017),
https://perma.cc/H25K-W7GG . . . . . . . . . . . . . . 29

 xiii
Wyoming Mining Association, Wyoming CoalSeptember 2018 Concise Guide,
https://perma.cc/5BJP-ULWR . . . . . . . . . . . . . 4, 5
Wyoming Mining Association, Wyoming Reaches
Deal with Japan to Research Clean Coal,
(August 3, 2016), https://perma.cc/8X9U-MFXQ
........................................ 6
Wyoming State Geological Survey, Coal Production
& M i n i n g, ( Thi r d Q uar t er , 2019),
https://perma.cc/TSX4-7WR2 . . . . . . . . . . . . . . . . 2

 1
INTRODUCTION
Montana and Wyoming seek to invoke the Court’s
original jurisdiction to prevent Washington from
discriminating against Montana’s and Wyoming’s
ability to engage in interstate and foreign commerce by
blocking port access to foreign markets. The Framers
understood that landlocked States, which lack
convenient ports for foreign commerce, were ripe for
abuse by coastal States. Their solution was the
Commerce Clause, which guaranteed that no
individual State could dictate the terms of interstate or
foreign trade. Today, however, Montana and Wyoming
are suffering the harms that the Framers sought to
prevent.
Montana and Wyoming have vast reserves of lowsulfur coal that generate hundreds of millions of dollars
in critical state revenue each year. But the sharp
decline in domestic coal consumption is having an
enormous impact on both States, affecting state and
local funding across the board. Foreign markets,
however, have a specific need for Montana’s and
Wyoming’s abundant low-sulfur coal. If only they can
get it.
There are no West Coast terminals that can handle
the export of Montana and Wyoming coal. Currently,
the only viable option is a proposed terminal in
Longview, Washington called Millennium Bulk. Based
on political opposition to increased coal exports and
economic self-interest, Washington officials denied a
Section 401 Water Quality Certification for the
Terminal, with prejudice, effectively killing the project.
Washington’s discriminatory closure of its ports to

 2
Montana and Wyoming coal violates the Dormant
Commerce Clause and the Foreign Commerce Clause,
leaving Montana and Wyoming no option to get one of
their most important commodities to foreign markets.
Washington’s discriminatory actions amount to a de
facto embargo on Montana and Wyoming coal. This
Court provides the only forum in which Montana’s and
Wyoming’s claims can be heard, and the States ask this
Court to exercise its exclusive and original jurisdiction
to remedy Washington’s inequitable and
unconstitutional actions.
STATEMENT
I.

Montana’s and Wyoming’s Large Reserves
of Low-Sulfur Coal Generate Critical State
Revenue.

Wyoming and Montana have enormous coal
reserves, much of which is in the Powder River Basin
spanning both States. Wyoming has led the Nation in
coal production since 1986 and has the second largest
reserve base at 58.1 billion tons.1 Wyoming exports
approximately 91% of the coal it produces.2 Montana
has the largest coal reserve in the country, amounting
to 118 billion tons, and is the sixth largest coal

1

U.S. Energy Information Administration, FAQ about Coal,
https://perma.cc/G4V2-NEJ3.

2

Wyoming State Geological Survey, Coal Production & Mining,
(Third Quarter, 2019), https://perma.cc/TSX4-7WR2.

 3
producer.3 Seventy-five percent of
production is shipped out of the State.4

Montana’s

This Court has previously recognized the vast
quantity and unique quality of Montana and Wyoming
coal. Commonwealth Edison Co. v. Montana, 453 U.S.
609, 612 (1981) (“Buried beneath Montana are large
deposits of low-sulfur coal”); Wyoming v. Oklahoma,
502 U.S. 437, 442 (1992) (“Wyoming is a major coalproducing State” that “has a significant excess mining
capacity.”). Because Powder River Basin coal has a low
sulfur content, “less sulfur escapes and pollutes the air
when Wyoming [and Montana] coal is burned.” Id. at
455, n.7.
Revenues generated from coal production are vital
to both Wyoming and Montana. While neither State
sells coal directly to generating facilities, both States
“impose a severance tax upon the privilege of severing
or extracting coal from land within its boundaries.” Id.
at 442 (recognizing Wyoming’s severance tax); see also
Mont. Code Ann. §§ 15-35-101 to -122; Wyo. Stat. §§ 3914-101 to -111. Coal production in Wyoming generates
several hundred million dollars each year in taxes,
royalties, and fees and is the second largest source of

3

See National Mining Association, U.S. Reserves by State and
Type-2016 (November 2017), https://perma.cc/2YJP-J3XE.

4

Montana Environmental Quality Council, Final Report to the
66th Montana Legislature, 15 (June 2018), https://perma.cc/P8EF7X76.

 4
tax revenue for state and local governments.5 Coal
production revenue in Montana is the State’s secondhighest source of natural resource tax revenue, totaling
over $80 million per year.6 Those receipts fund a broad
range of important programs in both States, from
education to infrastructure, and coal production
provides thousands of high paying jobs.7 The States
also lease State lands for coal extraction, which is an
important source of revenue for their school trusts. For
example, in 2019, Montana generated $11.3 million for
state schools from coal royalty revenue produced from
leases on 14,692 acres of state land.8
II.

Though Domestic Consumption of Montana
and Wyoming Coal Has Declined,
International Demand is Increasing.

Montana and Wyoming have suffered severe
financial impacts from the sharp decline in domestic
demand for coal. Coal production in Montana has
declined “from about 45 million tons in 2008 to 32

5

Wyoming Mining Association, Wyoming Coal-September 2018
Concise Guide, 4, https://perma.cc/5BJP-ULWR.

6

Montana Environmental Quality Council, Montana Department
of Revenue Biennial Report, July 1, 2016-June 30, 2018, p. 97,
https://perma.cc/KA2T-GLMJ.

7

Montana Department of Revenue Biennial Report, at 105;
Wyoming Mining Association, at 4.

8

Montana Board of Land Commissioners Agenda, at 84;
https://perma.cc/7GA3-9LKJ.

 5
million tons in 2016.”9 Between 2016 and 2017,
Wyoming saw a nearly $178 million dollar decrease in
revenue generated from coal production, which was a
16.7 percent decrease from the previous year.10 Most of
this decline is due to weakening domestic markets for
coal.11
The decline in domestic coal demand is expected to
continue and will become more dramatic as coal-fired
plants near the end of planned life cycles and are not
replaced with new facilities.12 It is expected that
domestic coal consumption in 2019 will be the lowest it
has been in forty years, and it will only continue to
decline in 2020.13
Despite the decline in domestic demand, overseas
markets are booming. Asian markets are expanding
and have a distinct need and economic desire for the
9

Montana Department of Environmental Quality, Understanding
Energy in Montana 2018, 74, https://perma.cc/5B83-XGZV.

10

Wyoming Mining Association, Wyoming Coal-September 2018
Concise Guide, 4.
11

Ibid.

12

U.S. Energy Information Administration, U.S. coal consumption
in 2018 expected to be the lowest in 39 years (December 4, 2018),
https://perma.cc/C5VR-ZGMF.

13

U.S. Energy Information Administration, Short-Term Energy
Outlook (December 10, 2019), https://perma.cc/BB47-8RKA; see
also U.S. Energy Information Administration, Almost all U.S. Coal
Production Is Consumed for Electric Power (June 10, 2019) (noting
that domestic coal production exceeds consumption),
https://perma.cc/PL6Z-3X5V.

 6
low-sulfur Powder River Basin coal in Montana and
Wyoming.14 Japan, Taiwan, South Korea, and China
are expanding coal-fired power stations to increase
their electric generating capacity to bring a higher
quality of life to their populations.15 Japan is
particularly dependent on imports to supply the
country’s energy, especially following the Fukushima
nuclear power plant accident. Japan is a signatory to
the Paris Climate Agreement and has led the way in
developing clean coal technology and research for
carbon capture, but that technology requires low-sulfur
coal.
Wyoming and Montana have engaged in major
efforts to expand coal production to Asian markets.
Governors of both States have visited Asian countries
to promote their States’ coal. In 2016, Wyoming
entered a five-year agreement with the Japan Coal
Energy Center.16 The agreement contemplates the
parties’ cooperation in facilitating coal exports and
sales, which may include the development of new U.S.
coal export and Japanese coal import terminals and
establishing sale contracts for Wyoming coal. The
States are acutely aware that exporting to Asian

14

See, e.g., Josh Galemore, Japan Presents Opportunity for Powder
River Basin Coal, Casper Star Tribune (October 22, 2018),
https://perma.cc/5665-RRPT.

15

International Energy Agency, Market Report Series-Coal 2018,
Key Findings, https://perma.cc/RXA2-3LSL.
16

Wyoming Mining Association, Wyoming Reaches Deal with
Japan to Research Clean Coal, (August 3, 2016),
https://perma.cc/8X9U-MFXQ.

 7
markets is vital to their economic security. But they
cannot reach these markets without access to a coastal
port.17
The harms caused by lack of port access are not
theoretical. For example, private U.S. companies have
successfully secured prospective export contracts with
South Korea, but the lack of port access makes it
impossible to supply the coal. As a result, South Korea
has increasingly looked to other countries, specifically
Russia, which has already increased its coal exports to
Korea.18 Foreign countries’ reliance on imported coal
means that, by necessity, they must either get cleanburning coal from Montana and Wyoming or highsulfur coal from other countries.
III.

The Present Controversy – Washington
Blocks Montana and Wyoming from
Exporting Coal.

To access foreign export markets for Wyoming and
Montana coal, a private company proposed a loading
facility called the Millennium Bulk Terminal in Cowlitz
County, Washington. The proposal would convert a
contaminated former aluminum smelter site into a
17

See Gabe Collins and Andrew Erickson, Wyoming and Montana
Could Become Major New Coal Suppliers to China and the Asian
Market—If they Can Obtain Port Access, China SignPost,
(September 4, 2012) (noting that Montana and Wyoming are
uniquely positioned to export coal to fill China’s growing need for
clean-burning coal), https://perma.cc/B559-EJ3L.
18

See Press Release, Mechel Signs Long-Term Coal Supply
Contract with South Korea’s STX Corporation, (October 17, 2019),
https://perma.cc/FL92-AVRH.

 8
productive transloading facility that would provide the
bridge between Montana’s and Wyoming’s Powder
River Basin coal and the Asian markets hoping to
import it. At full capacity, the Millennium Bulk
Terminal would ship 44 million metric tons of coal per
year, most coming from mines in the Powder River
Basin in Montana and Wyoming.19
The State of Washington recognizes that it “is a
gateway state, connecting Asian trade to the U.S.
economy,” and that “[m]any states are [] dependent on
the ports in Washington to import and export freight.”20
Various portions of the Columbia River have been
designated as “marine highways” by the Maritime
Administration, an agency of the U.S. Department of
Transportation.21 This designation provides many
benefits, including federal funding, a benefit
Washington has often sought and obtained.22 In
addition to the federal investment that made its ports
possible, Washington advertises that “ports in
Washington have several significant advantages,
including natural deep-water harbors on the coasts, a
19

Millennium Bulk Terminals-Longview, Final SEPA
Environmental Impact Statement, 2-11, -23 (April 2017).
20

Washington State Department of Transportation, 2017
Washington State Marine Ports and Navigation Plan, 1-2,
https://perma.cc/6D7S-RC25.
21

Maritime Administration,
https://perma.cc/H7NC-37Z3.
22

America’s

Marine

Highway,

See, e.g., Allison Frost, Report Highlights Economic Benefits of
Deeper Columbia, Think Out Loud (July 6, 2015),
https://perma.cc/9DXH-XWMW.

 9
West Coast location close to Asian markets, and strong
connections to Freight Economic Corridors.”23 Indeed,
Washington relies heavily on those ports for its own
economy. It is one of the most trade-dependent States
in the Nation, with imports and exports valued at
$126.8 billion in 2016 alone.24
The Millennium Bulk Terminal proposal was led by
a coal energy supply chain company now called
Lighthouse Resources. The permitting process for the
facility began in February 2012. As part of this process,
Lighthouse applied for what is known as a Section 401
Water Quality Certification, deriving from Section 401
of the Clean Water Act, 33 U.S.C. § 1341, which—in
conjunction with Lighthouse’s application for local
permits—triggered an environmental review under the
Washington State Environmental Policy Act (SEPA),
Rev. Code Wash. 43.21C et seq. SEPA, in turn, required
the Washington Department of Ecology and Cowlitz
County to complete an Environmental Impact
Statement (“EIS”).
Washington state law explicitly requires that
agencies assess the extraterritorial impact of products
shipped from Washington ports when considering
environmental impacts for permitting decisions. See
WAC 197-11-060(4)(b) (“In assessing the significance of
an impact, a lead agency shall not limit its
consideration of a proposal’s impact only to those
23

Washington State Department of Transportation, 2017
Washington State Marine Ports and Navigation Plan, 1-2,
https://perma.cc/6D7S-RC25.
24

Ibid.

 10
aspects within its jurisdiction, including local or state
boundaries.”); see also RCW 43.21C.030(1)(f) (requiring
agencies to “[r]ecognize the worldwide and long-range
character of environmental problems”). The State has
justified a more rigorous scope of review for an EIS
involving a terminal to export coal because “there is no
speculation as to the end use of the exported coal; it
will be combusted for thermal power” and because it
will “increase[e] America’s total export of coal.” App.
92; see also id. at 89-93, 96-97.
Therefore, Washington insisted that the EIS assess
the global impact, if any, of the Millennium Bulk
Terminal, from mining coal in Montana and Wyoming,
transporting and exporting it, through combustion in
Asia.25 Washington’s insistence that the EIS expand its
focus on coal’s export to Asia and the global impact on
greenhouse gas emissions caused the U.S. Army Corps
of Engineers to reverse its decision to pursue a joint
NEPA/SEPA EIS for the project. App. 83.
In 2017, after four years of review, the Washington
Department of Ecology and Cowlitz County jointly
published the EIS. The EIS identified nine potential
environmental impacts that could result from
construction and operation of the Terminal.26 Co-lead
on the EIS, the Cowlitz County Director of Building
and Planning, stressed that these potential impacts
25

Millennium Bulk Terminals-Longview SEPA Environmental
Impact Statement, SEPA Greenhouse Gas Emissions Technical
Report, at 191-93, https://perma.cc/2HG5-APJA.
26

EIS, Summary, § S.7, pp. S-41 to S-43, https://perma.cc/27DR67UX.

 11
could be mitigated or eliminated, and that the EIS
described a fully permittable project. App. 52-55.
Importantly, the EIS concluded that “[t]here would
be no unavoidable and significant adverse
environmental impacts on water quality.”27 For all but
one potential impact (air quality), the EIS recognized
that mitigation or infrastructure improvements would
resolve any potential problems. App. 52, 55. The air
quality analysis was differentiated because it was a
late addition to the EIS and Lighthouse had no
opportunity to address mitigation. App. 56.
While the EIS concluded that water quality impacts
were less than significant, the Washington Department
of Ecology staff continued with its 401 Certification
review to determine if Lighthouse’s proposal complied
with state water quality requirements. The
Department of Ecology planned to follow its usual
practice when water quality issues remain unresolved
by the certification deadline, which was to deny the
Certification “without prejudice.” App. 1-5. Career staff
prepared a draft letter to that effect, explaining the
need for more time to review public comments and to
further evaluate mitigation plans for water quality
impacts. Id. The letter noted that denying the
application “without prejudice would not in any way
preclude Millennium from resubmitting a request for a
[water quality certification] at a later date.” Id. at 5.
That letter was signed and ready to be mailed.
Department of Ecology staff then emailed the prepared
letter to the Governor’s office for approval, advising
27

EIS, § 4.5.8; see also App. 60.

 12
that the department intended to send the letter that
day. App. 78.
At that point, political appointees commandeered
the process. The draft letter was never sent. After staff
met with Governor Inslee about the project (App. 80),
Maia Bellon, the Governor’s director of the Department
of Ecology, drafted a new letter denying the
Millennium Bulk Terminal proposal “with prejudice.”
App. 7. The denial with prejudice killed the project.
The application could not be resubmitted, contrary to
the Department’s established practice, and the
administrative review was prematurely terminated,
though the Department was expecting additional
information.
IV.

Washington Denied the 401 Certification
Because of Its Political Objection to Coal
and Because of Its Own Economic SelfInterest.

Washington officials cited the potential
environmental impacts identified in the EIS as reasons
for denying the permit. App. 46-47. Those reasons
included potential impacts from train traffic, vehicle
congestion, noise and vibration, rail safety, and air
quality. The denial was based on the Department’s
discretionary authority under SEPA. App. 46.
Dr. Elaine Placido, who was point on the project for
the EIS co-lead, Cowlitz County, described those
reasons as exaggerated and pretextual. App. 53. Her
perspective was uniquely well-founded because,
although she had worked on hundreds of
environmental reviews with the Department of

 13
Ecology, she had never seen another application
treated so unfairly; Placido stated that she “witnessed
Ecology treat Millennium more like an adversary than
a permit applicant.” App. 53-54, 60-61. (Para. 10, 12,
25, 26.) Based on her long and involved work on the
EIS, the “project team openly agreed that each of the
impacts potentially caused by the Terminal were
avoidable and subject to reasonable mitigation.” App.
52. (emphasis original). She and her staff believed that
the Department of Ecology purposely “distorted” the
findings to recast “multiple EIS potential impacts that
‘could’ occur as impacts that ‘would’ occur.” App. 55-56.
Her final assessment was blunt: “I believe that if
Millennium proposed to ship anything other than coal,
Ecology would have granted the Section 401 water
quality certification.” App. 55.
There is plenty of additional grist for the mill.
Washington State officials, especially Governor Inslee,
have consistently used port access for Montana and
Wyoming coal as a wedge issue to advance personal
political ambitions. Governor Inslee made opposition to
coal exports a campaign priority starting with his first
press conference as governor. He declared that “there
are ramifications ultimately if we burn the enormous
amounts of Powder River Basin coal that are exported
through our ports,” and he characterized the
permitting decisions for those ports as the largest
decision for the State during his lifetime.28 In Governor

28

Jessica Goad, Governor Inslee Calls Coal Exports “The Largest
Decision We Will Be Making as a State from a Carbon Pollution
S t a n d p o i n t , ” T h i nkProgress (January 22, 2013),
https://perma.cc/8GBE-QMVK.

 14
Inslee’s recent presidential campaign, his spokesperson
boasted that the Governor led opposition to oil and coal
export terminals for the Washington coast.29 In fact, a
centerpiece of his presidential campaign was to phase
out all domestic coal energy generation within ten
years.30 And when Governor Inslee was asked if he felt
“any sympathy for Montana and Wyoming who are
trying to get an important product, coal, to market,” he
said “no” because “apple[s] [are] healthy, eating coal
smoke [] is not.”31 Washington also actively worked to
develop a strategy to subject coal export facilities to
more rigorous environmental review than other
projects. App. 67-69; see also App. 63 (Governor’s
talking points assuring Boeing that it would not be
subject to the same environmental review as the coal
port).
Governor Inslee is not alone. Coastal state political
leaders have vigorously worked to prevent coal export
from California and Oregon as well. For example, in
Oakland, California, city officials prevented
development of an export terminal and admitted that
their opposition stemmed solely from the project’s plan
to export coal. One of the politicians responsible for
blocking development of the terminal was unabashed:
29

Benjamin Storrow, Is Inslee the climate choice? First he must
pass something, E&E News, (January 18, 2019),
https://perma.cc/3ND6-M5SP.
30

Jay Inslee for Governor, Rejecting New Fossil Fuel
Infrastructure, https://perma.cc/68CV-AY9U.
31

See Governor’s Press Conference On Clean Power Plan, 29:4830:23, https://perma.cc/HLF8-K4N6.

 15
“As far as I can tell, nobody on the West Coast wants
this coal.”32 The same official said that a cargo facility
at the site would be fine, just not one that handles coal.
Ibid. Even more recently the city council in Richmond,
California passed an ordinance banning coal exports
from a port located in the city after the mayor boasted
that he would “like to get rid of coal worldwide.”33 And
half a dozen other coal export proposals in California,
Oregon, and Washington have collapsed in recent years
because of similar political opposition that has
successfully used permitting processes to kill the
projects. Ibid.
In addition to the overt political motivation for the
denial, Washington publicly admitted that it denied the
Water Quality Certification to block competition with
its own agricultural exports. One of the “Key messages”
that Washington wanted to promote after denying the
Millennium Bulk Terminal was that “Increased coal
trains from the Millennium proposal would compete
with rail shipments of other goods, including
Washington’s important agricultural products.” App.
71. The Washington Department of Ecology defended
the Section 401 Certification denial in part because the
“Millennium proposal would only ship coal, there would
be no apples. No agricultural products from
Washington would be handled at the site.” Ibid. The
32

Bill Lucia, With West Coast States Blocking Coal Export Projects,
Proponents Keep Pushing, Route Fifty (November 19, 2019),
https://perma.cc/MJ66-5BEA.
33

Will Wade, California City Bans Coal, Blocking Key Export Route
to Asia, Bloomberg News (January 14, 2020), https://perma.cc/7N8
Z-MP24.

 16
Department of Ecology argued that the Millennium
Bulk Terminal would not boost Washington’s
agricultural exports, claiming that “[t]he opposite is
probably true. The Millennium coal proposal could
harm farmer’s ability to get their commodities to
market by increasing Washington’s rail traffic on a line
that would already be over capacity.” App. 72-73
(“[c]oal and apples don’t mix. Millennium’s proposal
would only ship coal. There is no ‘apples to coal’
comparison here”); App. 65 (Governor’s policy director
noting that the Washington-based aerospace industry
brings jobs, while coal export does not).
Following the 401 Certification denial, Lighthouse
Resources sued Governor Inslee in federal district
court, based in part on the Commerce Clause.
Lighthouse Resources v. Inslee, No. 3:18-cv-05005-RJB
(W.D. Wash. January 3, 2018). Neither Montana nor
Wyoming were parties.34 After fifteen months of
litigation and hundreds of docket entries, the federal
district court abstained from deciding the Commerce
Clause issues while litigation involving other issues
proceeded in a Washington state court.35 In short,
Washington successfully killed the project based on
politics and economic self-interest, knowing that it left
Montana and Wyoming with no option to serve foreign
markets and no judicial recourse. Washington’s actions
have had an enormous impact on interstate commerce,

34

The States joined an amicus brief in support of Lighthouse’s
Commerce Clause challenge.
35

That abstention order is currently on appeal to the U.S. Court of
Appeals for the Ninth Circuit Court, docket no. 19-35415.

 17
and especially on Montana and Wyoming, yet
Washington has dodged any Commerce Clause
challenge to its discriminatory actions in denying port
access for coal exports.
ARGUMENT
This Court has original jurisdiction over cases and
controversies between the States. U.S. Const. art. III,
§ 2, cl. 2. That jurisdiction has been exclusive since the
First Congress adopted the Judiciary Act of 1789, ch.
20, § 13, 1 Stat. 73, 80–81 (1789), (codified at 28 U.S.C.
§ 1251(a)). “By ratifying the Constitution, the States
gave this Court complete judicial power to adjudicate
disputes among them.” Texas v. New Mexico, 482 U.S.
124, 128 (1987). Original jurisdiction was meant to
provide States with a means of peaceful resolution of
problems such as “trade barriers, recriminations, [and]
intense commercial rivalries [that] had plagued the
colonies. The traditional methods available to a
sovereign for the settlement of such disputes were
diplomacy and war. Suit in this Court was provided as
an alternative.” Georgia v. Pennsylvania R.R., 324 U.S.
439, 450 (1945) (citations and internal footnote
omitted).
In deciding whether to grant leave to file a
complaint in a dispute arising under the Court’s
original jurisdiction, the Court examines two factors:
(1) “the interest of the complaining State, focusing on
the seriousness and dignity of the claim”; and (2) “the
availability of an alternative forum in which the issue
tendered may be resolved.” Mississippi v. Louisiana,
506 U.S. 73, 77 (1992) (citation and quotation marks

 18
omitted). Here, both factors weigh in favor of the Court
exercising its original jurisdiction.
“The model case for the invocation of this Court’s
original jurisdiction is a dispute between States of such
seriousness that it would amount to casus belli if the
States were fully sovereign.” Mississippi, 506 U.S. at 77
(citations omitted). Casus belli is “[a]n act or
circumstance that provokes or justifies war.” Black’s
Law Dictionary 231 (8th ed. 2004). That is precisely the
situation here. Frederic Bastiat is credited with saying:
“When goods do not cross borders, soldiers will.” This
Court has also recognized that an embargo “may be,
and often is, used as an instrument of war[.]” Gibbons
v. Ogden, 22 U.S. 1, 192 (1824). Here, Washington has
imposed a de facto embargo on Montana and Wyoming
coal. Therefore, the casus belli that this Court looks for
exists. Accordingly, this Court should exercise its
exclusive and original jurisdiction to remedy this
inequitable and unconstitutional embargo, which can
be settled in no other forum.
I.

The Seriousness and Dignity of Montana’s
and Wyoming’s Claims Warrants Exercise
of the Court’s Original Jurisdiction.

The seriousness and dignity of Montana’s and
Wyoming’s claims weigh heavily in favor of the Court’s
exercise of original jurisdiction. The State of
Washington’s restraint of Montana’s and Wyoming’s
legitimate economic activity plainly implicates
important sovereign interests that are essential to the
proper functioning of the Union. “[T]he right to engage
in interstate commerce is not the gift of a state,” and it
is not for coastal states to ordain for their landlocked

 19
neighbors which of their industries may access the
stream of commerce. West v. Kansas Nat. Gas Co., 221
U.S. 229, 260 (1911). If one State had such power
“embargo may be retaliated with embargo, and
commerce will be halted at state lines.” Id. at 255. This
Court alone can ensure fair access to international
waters for each of the several States.
In fact, the Court has previously entertained several
cases among States involving Commerce Clause claims,
especially in cases involving the transportation or
taxation of natural resources. See, e.g., Pennsylvania v.
West Virginia, 262 U.S. 553 (1923) (enjoining
enforcement of a West Virginia law prohibiting
transportation of natural gas to other states);
Maryland v. Louisiana, 451 U.S. 725 (1981)
(invalidating Louisiana use tax on offshore gas
processed within Louisiana but moving to other states);
Wyoming, 502 U.S. 437 (invalidating an Oklahoma
statute that required electric-generating plants to burn
a mixture of coal containing at least ten percent
Oklahoma-mined coal). This case similarly warrants
the Court’s review.
As with its original jurisdiction, the Court
judiciously exercises its appellate jurisdiction, but in so
doing, it has not hesitated to strike down State-erected
barriers to the fundamental infrastructure of interstate
and international commerce. See, e.g., Pennsylvania,
262 U.S. 553 (enjoining a state statute prohibiting the
interstate transport of natural gas); Gibbons, 22 U.S. 1
(enjoining a state statute granting the exclusive right
of navigation); Bowman v. Railway Co., 125 U.S. 465
(1888) (holding invalid a state statute forbidding any

 20
common carrier from transporting liquor into Iowa
without first receiving a certificate that the recipient
was authorized to sell liquor in the county). Interstate
and international highways, railways, waterways, and
seaports are the instrumentalities of commerce, and
this Court should be particularly vigilant to ensure
that the parochial political concerns of one State do not
prevent their fair use.
Notably, this Court has exercised original
jurisdiction in cases with lesser constitutional insult
than Washington has inflicted on Montana and
Wyoming. For example, the Court exercised original
jurisdiction where one State merely reduced another
State’s ability to collect tax revenues, as opposed to the
total blockage Washington caused here. See Wyoming,
502 U.S. at 451. When Oklahoma affected Wyoming’s
“ability to collect severance tax revenues, an action
undertaken in its sovereign capacity,” this Court
described it as “beyond peradventure” that Wyoming
raised “a claim of sufficient seriousness and dignity” to
exercise original jurisdiction. Ibid. Because Oklahoma
was causing Wyoming to lose severance tax from coal
extraction, “Wyoming’s challenge under the Commerce
Clause precisely ‘implicate[d] serious and important
concerns of federalism fully in accord with the purposes
and reach of our original jurisdiction.’” Ibid. (quoting
Maryland, 451 U.S. at 744.
This case presents an even bolder attack on
constitutional values because Washington has
completely barred Montana’s and Wyoming’s access to
an international shipping port. Washington’s
discrimination was carried out at the highest level –

 21
Governor Inslee’s office hijacked the permit process and
forced a denial of Section 401 Certification. This action
was a departure from customary practices and based
on improper justifications. This Court should intervene
to address not only the loss of Montana’s and
Wyoming’s rights but the loss of millions of dollars each
year in severance tax and other coal production
revenue caused by Washington’s political opposition to
coal. Moreover, the future of both State’s coal
production, with the critical benefits it provides to the
citizens of those States, is in substantial doubt without
reliable access to foreign markets. Wyoming, 502 U.S.
at 446 (recognizing that “loss of any market cannot be
made up by sales elsewhere.”).
Left unchecked, other coastal States will likely
follow Washington’s lead at the expense of their
landlocked neighbors. Washington, Oregon, and
California have already erected unreasonable barriers
to coal exports. Without this Court’s intervention, these
States will be free to take additional discriminatory
actions against Montana and Wyoming. While it is coal
that is disfavored today, it will assuredly be another
commodity tomorrow. After all, a century ago, this
Court applied the Commerce Clause to prevent States
from discriminating against imported liquor. See
Granholm v. Heald, 544 U.S. 460, 476-486 (2005)
(summarizing cases). Just as it did in those cases, the
Court must intervene to stop States from interfering
with interstate commerce by imposing their own
political and moral judgments on their neighbors.
When examining “the seriousness and dignity of the
claim,” this Court must naturally look to the merits of

 22
the arguments advanced by the movant States. See
Mississippi, 506 U.S. at 77 (citation and quotation
marks omitted). Montana and Wyoming present this
Court with a serious controversy supported by
arguments that easily clear the “dignity” bar. The
arguments advanced by Montana and Wyoming show
that this Court’s exercise of original jurisdiction in this
case is warranted, and Montana and Wyoming should
be granted leave to file their Bill of Complaint.
A. Washington’s Embargo of Montana and
Wyoming Coal is Per Se Invalid Under
the Dormant Commerce Clause.
The Commerce Clause grants Congress the power to
“regulate Commerce . . . among the several
States.” U.S. Const. art. I, § 8, cl. 3. Although the
Clause does not expressly limit a States’ ability to
regulate commerce, this Court has interpreted the
Clause to include a “dormant” limitation preventing
States “from adopting protectionist measures.”
Tennessee Wine and Spirits Retailers Assoc. v. Thomas,
139 S. Ct. 2449, 2459 (2019). This case implicates the
core reasons that the Dormant Commerce Clause
exists: ensuring the free-flow of goods across State
lines, preventing a single State from dictating the
terms of interstate commerce based on its own political
and extraterritorial interests, and preventing economic
protectionism.
The Commerce Clause was the Framers’ cure for
the “economic Balkanization that had plagued relations
among the Colonies” and was born from the premise
that the federal government “alone has the gamut of
powers necessary to control of the economy,” and that

 23
“the states are not separable economic units.” Oregon
Waste Sys., Inc. v. Dept. of Environmental Quality of
State of Oregon, 511 U.S. 93, 98–99 (1994) (quotations
and citations omitted).
Protecting landlocked States from the whims of
States with port access was an especially important
motivation for the Framers, who were concerned about
“the peculiar situation of some of the States, which
having no convenient ports for foreign commerce, were
subject to be taxed by their neighbors.” James
Madison’s Preface to Debates in the Convention of
1787, reprinted in Records of the Federal Convention of
1787 (M. Farrand ed. 1966); see also Letter from James
Madison to Professor Davis, reprinted in The Founders’
Constitution, Volume 2, Article 1, Section 8, Clause 3,
Document 21 (“The condition of the inland States is of
itself a sufficient proof that it could not be the intention
of those who framed the Constitution to substitute for
a power in Congress to impose a protective tariff, a
power merely to permit the States individually to do
it.” (emphasis in original)). This principle is not unique
to the United States. See Right of Access of LandLocked States to and from the Sea and Freedom of
Transit, United Nations Convention on the Law of the
Sea, Part X, Articles 124-132; id. at Article 125 (“landlocked States shall enjoy freedom of transit through the
territory of transit States by all means of transport”).
The Commerce Clause and its implicit restrictions
on the States were key reasons for the Constitution’s
adoption. The Court described that “[o]ne of the major
defects of the Articles of Confederation, and a
compelling reason for the calling of the Constitutional

 24
Convention of 1787, was the fact that the Articles
essentially left the individual States free to burden
commerce both among themselves and with foreign
countries very much as they pleased.” Michelin Tire
Corp. v. Wages, 423 U.S. 276, 283 (1976). “By
prohibiting States from discriminating against or
imposing excessive burdens on interstate commerce
without congressional approval, it strikes at one of the
chief evils that led to the adoption of the Constitution,
namely, state tariffs and other laws that burdened
interstate commerce.” Comptroller of Treasury of Md.
v. Wynne, 575 U.S. 542 (2015) (citations omitted). The
Court long ago described that “when a State proceeds
to regulate commerce with foreign nations, or among
the several States, it is exercising the very power that
is granted to Congress, and is doing the very thing
which Congress is authorized to do.” Gibbons, 22 U.S.
at 199–200.
1. Washington’s Obstruction of Port
Access to Benefit Its Own Economic
Interests at the Expense of Other
States Violates The Dormant
Commerce Clause.
Washington publicly stated that it denied the
Section 401 Certification permit to protect its own
agricultural interest. This is clearly unconstitutional.
The Dormant Commerce Clause “prohibits economic
protectionism—that is, regulatory measures designed
to benefit in-state economic interest by burdening outof-state competitors.” Wyoming, 502 U.S. at 454
(quoting New Energy Co. of Ind. v. Limbach, 486 U.S.
269, 273–74 (1988)); see also Tennessee Wine & Spirits

 25
Retailers Ass’n, 139 S. Ct. 2449, 2460 (2019) (“[T]he
proposition that the Commerce Clause by its own force
restricts state protectionism is deeply rooted in our
case law.”). One of the clearest signs that a State has
violated the Dormant Commerce Clause is “differential
treatment of in-state and out-of-state economic
interests that benefits the former and burdens the
latter.” Oregon Waste Sys., Inc., 511 U.S. at 99. This
Court has “laid repeated emphasis upon the principle
that the State may not promote its own economic
advantages by curtailment or burdening of interstate
commerce.” H.P. Hood & Sons, Inc. v. Du Mond, 336
U.S. 525 (1949). “[L]aws that discriminate against
interstate commerce face ‘a virtually per se rule of
invalidity.’” Granholm, 544 U.S. at 476 (quoting
Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978)).
Washington’s treatment of the Section 401
Certification is constitutionally offensive because it
“directly regulates or discriminates against interstate
commerce or . . . its effect is to favor in-state economic
interests over out-of-state interests.” Brown-Forman
Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S.
573, 579 (1986) (citations omitted). Washington
publicly proclaimed the reasons it denied the Section
401 Certification and chief among these was protecting
its own economic interests (see, supra, Statement,
Section IV). Thus, this case presents “the rare instance
where a state artlessly discloses an avowed purpose to
discriminate against interstate goods.” Hunt v.
Washington State Apple Advertising Comm’n, 432 U.S.
333, 350 (1977) (quoting Dean Milk Co. v. Madison, 340
U.S. 349, 354 (1951)). Washington officials were clear
that, in addition to politics, what motivated the

 26
decision to deny the permit was that “[i]ncreased coal
trains from the Millennium proposal would compete
with rail shipments of other goods, including
Washington’s important agricultural products” and
reminding people that the “Millennium proposal would
only ship coal, there would be no [Washington] apples.”
App. 11.; see also App. 65 (“Aerospace brings thousands
of jobs with those emissions; coal export doesn’t.”)
Washington’s pursuit of self-interested economic
protectionism runs afoul of the Commerce Clause and
this Court’s decisions interpreting the Clause.
Washington’s actions benefit its own economic interest
while burdening the interests of Montana and
Wyoming. This is a constitutional violation, and this
Court should exercise original jurisdiction to resolve
this dispute among States.
2. Washington’s Obstruction of Port
Access Based on Political
Discrimination Violates the Dormant
Commerce Clause.
While the Dormant Commerce Clause most often
prohibits economic protectionism, it is equally
concerned with the “practical effects” of state actions on
interstate commerce. Brown-Forman Distillers Corp.,
476 U.S. at 583. “The principle that, without
controlling Congressional action, a state may not
regulate interstate commerce so as substantially to
affect its flow or deprive it of needed uniformity in its
regulation is not to be avoided by ‘simply invoking the
convenient apologetics of the police power[.]’” S. Pac.
Co. v. Arizona, 325 U.S. 761, 779-80 (1945) (citations
omitted).

 27
The Dormant Commerce Clause prohibits a coastal
State from blocking port access for certain commodities
or products simply because it does not like them or
gains political capital by opposing them. Coastal State
and local governments in California and Oregon have
joined Washington in a vigorous and coordinated effort
to kill West Coast port access for coal export. Lucia,
supra note 41, With West Coast States Blocking Coal
Export Projects. That newly-developed strategy to block
coal exports from interior States is rooted in political
opposition to the commodity that States like Montana
and Wyoming are trying to get to market. See, e.g.,
Cascadia Law Group PLLC, Reducing Impacts from
Fossil Fuel Projects Report to the Whatcom County
Council, February 12, 2018 (proposing strategy to erect
regulatory barriers to coal and other fossil fuel
exports).
When Washington bars access to a port, it appoints
itself a gatekeeper of the national economy. That
conduct is improper because maintaining the free flow
of national commerce is precisely what the Commerce
Clause was designed to protect. Whether it is political
motivation or a tariff based on economic protectionism,
the result is the same. The “action of the State would
‘neutralize the economic consequences of free trade
among the states’” and fundamentally undermine the
Commerce Clause’s goal to unify commerce “upon the
theory that the peoples of the several states must sink
or swim together.” H.P. Hood & Sons, 336 U.S. 525,
532-33 (1949) (quoting Baldwin v. G.A.F. Seelig, Inc.,
294 U.S. 511, 523 (1935)). No State has “the power to
retard, burden or constrict” the flow of commerce,

 28
especially when it is based on raw political motive. H.P.
Hood & Sons, 336 U.S. at 533.
Washington’s with prejudice permit denial was
motivated by political machinations, namely, Governor
Inslee’s political campaign to control global greenhouse
gas emissions. The Governor’s appointees
commandeered the permitting process from career staff
to ensure that the project would be denied “with
prejudice.” Washington treated the Millennium Bulk
Terminal permitting process differently, and less
favorably, than in-state projects from Washington
companies, such as Boeing. The Governor appears to
have assured Washington-based Boeing that Boeing’s
projects would not face the same degree of scrutiny as
the Millennium Bulk Terminal proposal, stating: “Let
me be clear that the next generation of 777x wings is a
very different commodity than coal. Based on what we
know about the 777x at this time, we would expect a
much different SEPA approach would apply to a
proposed 777x project.” App. 63.
Washington killed the Millennium Bulk Terminal
due to purported concern about greenhouse gas
emissions outside Washington’s borders. Supra,
Statement, Section IV. Indeed, Washington law
explicitly requires that agencies consider the product’s
end use and the impact that use has beyond the State’s
borders. WAC 197-11-060(4)(b); see also RCW
43.21C.030(1(f). Just as a State’s economic
protectionism is unconstitutional, the Commerce
Clause prevents a State from interfering with
interstate commerce based on extra-territorial
concerns. See C & A Carbone, Inc. v. Town of

 29
Clarkstown, N.Y., 511 U.S. 383, 393–94 (1994). For a
State to deny a permit based on factors “it might deem
harmful to the environment” is illegitimate and “would
extend the [State’s] police power beyond its
jurisdictional bounds.” Id. at 393 (citing Baldwin, 294
U.S. 511). A State cannot shut off interstate commerce
because it has concerns about speculative impacts
beyond its borders. See Healy v. Beer Inst., 491 U.S.
324, 336–37 (1989).36
The advancement of Governor Inslee’s political
ambitions was ultimately the nail in the coffin of the
Section 401 process. Political ambition is not a
constitutionally benign motive. Even if the motive
could positively be attributed to Washington’s desire to
protect its own citizens, that motive would not save
Washington’s actions from infirmity under the
Dormant Commerce Clause, because “[t]o give entrance
to [the] excuse” of benefiting local interests “‘would be
to invite a speedy end of our national solidarity.’” West
Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 206 (1994)
(quoting Baldwin, 294 U.S. at 522-523). Manipulating
a State’s environmental review process over energy
producing resources, to serve political ends, falls
squarely within that admonition.
36

Washington’s assumption that the Terminal would increase
greenhouse gas emissions was wrong. Research by Professor Dr.
Frank Wolak, who directs Stanford’s Program on Energy and
Sustainable Development, reached the same conclusion. He
concludes that opening a west coast port for coal exports to Asia
would reduce greenhouse gas emissions. See Frank Wolak,
Assessing the Impact of the Diffusion of Shale Oil and Gas
Technology on the Global Coal Market, Stanford.edu (November 7,
2017), https://perma.cc/H25K-W7GG.

 30
The fact that Washington’s efforts to block coal
export resulted from a permitting decision rather than
State statute makes it even more constitutionally
repugnant. This Court has already recognized that the
Dormant Commerce Clause’s protections are not
limited to statutes or regulations and can be triggered
by specific State actions like permit or license denials.
See H.P. Hood & Sons, 336 U.S. at 526-28. That
approach only makes sense. A permit or licensing
denial based on political or economic discrimination is
no less offensive to the Dormant Commerce Clause
because it was at the direction of one political official.
Indeed, it is worse because, as here, the action can be
based on the motivations of a lone State actor,
unchecked by the deliberative process of the State
Legislature. That discriminatory motive could extend
to any commodity that falls out of favor with a State’s
political regime, be it coal, non-organic produce, or
ethanol-based fuels. The free-flow of interstate
commerce cannot hang on whether an ambitious
politician can score political points for opposing another
State’s product or commodity.
“Our system, fostered by the Commerce Clause, is
that every farmer and every craftsman [and miner]
shall be encouraged to produce by the certainty that he
will have free access to every market in the Nation,
that no home embargoes will withhold his exports, and
no foreign state will by customs duties or regulations
exclude them.” H. P. Hood & Sons, 336 U.S. at 539.
Washington’s discriminatory embargo of Montana and
Wyoming coal thus implicates the core purposes that
underlie the Dormant Commerce Clause and
constitutes a clear violation of the Constitutional

 31
provision that enabled the Union.37 This Court should
grant leave to file the Bill of Complaint so that this
dispute among the States can be resolved.
B. The Foreign Commerce Clause Requires
Heightened Scrutiny When States
Impact Foreign Trade in Contravention
of U.S. Foreign Policy.
Washington’s actions also offend the Foreign
Commerce Clause. A close counterpart to the Dormant
Commerce Clause, the Foreign Commerce Clause
provides that Congress has the power to “regulate
Commerce with foreign nations.” U.S. Const. art I, § 8,
cl. 3. This clause refers both to attempts to regulate the
conduct of foreign companies and attempts to restrict
the actions of American companies overseas. Nat.
Foreign Trade Council v. Natsios, 181 F.3d 38, 79 (1st
Cir. 1999) (citing Cooley v. Bd. of Wardens, 53 U.S. 299,
317 (1851)). The Court applies an analysis similar to its
Interstate Commerce Clause jurisprudence, but with
even more force.
This Court has recognized that “Foreign commerce
is pre-eminently a matter of national concern” that
requires the Nation to speak with “one voice.” Japan
Line, Ltd. v. Los Angeles Cty., 441 U.S. 434, 448–49
(1979) (citations omitted). There is a special need for
federal uniformity in issues involving foreign trade. Id.
at 446, 453–54. As a result, “state restrictions
burdening foreign commerce are subjected to a more
37

Montana and Wyoming also assert that Washington’s embargo
fails the balancing test articulated in Pike v. Bruce Church, Inc,
397 U.S. 137, 142 (1970).

 32
rigorous and searching scrutiny.” South-Central
Timber Development, Inc., v. Wunnicke, 467 U.S. 82,
100 (1984); see also Kraft Foods, Inc. v. Iowa Dep’t of
Revenue and Finance, 505 U.S. 71, 79 (1992)
(recognizing that prohibition of state regulation of
foreign commerce is “broader than the protection
afforded to interstate commerce” because “matters of
concern to the entire Nation are implicated”); Laurence
H. Tribe, American Constitutional Law § 6-21, at 469
(2d ed. 1988) (“[i]f state action touching foreign
commerce is to be allowed, it must be shown not to
affect national concerns to any significant degree, a far
more difficult task than the case of interstate
commerce”).
State action violates the Foreign Commerce Clause
if it “either implicates foreign policy issues which must
be left to the Federal government or violates a clear
federal directive.” Container Corp. of Am. v. Franchise
Tax Bd., 463 U.S. 159, 194 (1983) (emphasis original).
Washington’s policy of denying permits to prevent the
construction of a coal port does both.
The unambiguous foreign policy of the United
States is to support coal export. The federal
government has made its position clear: exporting coal
to Asia and other global markets is key to boosting the
American economy and protecting our national
security, thus, the current Administration’s policy is to
“export American energy all over the world.”38
Advancing this foreign policy, President Trump issued

38

Remarks by President Trump at the Unleashing American
Energy Event (June 29, 2017), https://perma.cc/HS43-Z9PK.

 33
Executive Order 13783 in 2017, articulating that
natural resource development is crucial to “ensuring
The U.S.
the Nation’s geopolitical security.”39
Secretary of Energy subsequently requested a strategy
to assess opportunities to advance U.S. coal exports to
international markets.40 The resulting report indicated
that there was great opportunity to export coal,
especially from the Powder River Basin, to foreign
markets, which would improve the U.S. balance of
trade, support key allies, and boost the U.S. economy.41
The report recommended that developing West Coast
terminal capacity was critical to the United States’
strategy to expand coal exports, and noted that, on “the
West Coast, the limited capacity of export terminals
has greatly limited the ability to export western U.S.
coals.”42
A strong export market for coal is not only the
current Administration’s foreign policy. President
Obama also recognized the importance of coal exports,
especially to Asia, which peaked at over 125 million
tons in 2012.43 Recognizing the country’s export

39

Executive Order 13783 (March 28, 2017).

40

Letter from Rick Perry to Greg Workman, (January 7, 2018),
https://perma.cc/P993-YA6U.
41

Advancing U.S. Coal Exports, National Coal Council, 2-10
(October 22, 2018), https://perma.cc/MR7C-RJE7.
42

43

Id. at 6, 10.

U.S. Energy Information Administration, Annual Coal Report
2017, Table 36.

 34
potential for coal, President Obama called the United
States “the Saudi Arabia of coal.”44
Part of the United States National Security
Strategy is to help allies become more energy
independent. Thus, a key component of the National
Security Strategy is to boost energy exports through
coastal terminals like Millennium Bulk Terminal:
The United States will promote exports of our
energy resources, technologies, and services,
which helps our allies and partners diversify
their energy sources and brings economic gains
back home. We will expand our export capacity
through the continued support of private sector
development of coastal terminals allowing
increased market access and greater competitive
edge for U.S. Industries.45
Washington’s unilateral decision to block Montana
and Wyoming—the largest coal producers in the United
States—from accessing those foreign markets,
frustrates both landlocked States and Asian allies,
prevents the United States from speaking with “one
voice,” and contravenes clear federal directive. This
outcome alone is sufficient reason for this Court to
grant leave to file the Bill of Complaint.

44

David Farenthold and Michael Shear, As Obama Visits Coal
Country, Many Are Wary of His Environmental Policies,
Washington Post (April 25, 2010).
45

Advancing U.S. Coal Exports An Assessment of Opportunities to
Enhance U.S. Coal, National Coal Council, https://perma.cc/L9CVL5PA.

 35
II.

Montana and Wyoming
Alternative Forum.

Have

No

Under the second jurisdictional factor, this Court
examines whether there is another forum where “there
is jurisdiction over the named parties, where the issues
tendered may be litigated, and where appropriate relief
may be had.” Illinois v. City of Milwaukee, Wis., 406
U.S. 91, 93 (1972). Here, there is no other forum where
these elements exist. Montana’s and Wyoming’s
sovereign interests in being free from Washington’s
discrimination against their economic well-being are at
stake here. Those interests can be litigated only in this
Court, satisfying the second factor that the Court
considers in determining whether to exercise its
original jurisdiction. See Mississippi, 506 U.S. at 77.
Congress vested this Court with “original and
exclusive jurisdiction of all controversies between two
or more States.” Ibid. (emphasis original) (quoting 28
U.S.C. § 1251(a)). Thus, while the private parties in the
litigation in the Western District of Washington raised
a Commerce Clause challenge to Washington’s denial
of the Section 401 Water Quality Certification,
Congress’ description of this Court’s jurisdiction as
exclusive for cases between States “necessarily denies
jurisdiction of such cases to any other federal court,”
including the Washington district courts. Id. at 77–78.
Furthermore, that litigation is not active so there is “no
pending action” that raises the same issue or provides
a forum to challenge Washington’s actions under the
Dormant Commerce Clause. See Wyoming, 502 U.S. at
452.

 36
This Court previously found the exercise of original
jurisdiction proper “without assurances, notably absent
here, that a State’s interest under the Constitution will
find a forum for appropriate hearing and full relief.”
Ibid. Of note, this Court granted leave in Wyoming
even though the private mining companies impacted by
the law could have sued elsewhere because “[e]ven if
such action were proceeding, however, Wyoming’s
interests would not be directly represented.” Ibid.
The interests of Montana and Wyoming,
specifically, cannot be directly represented anywhere
but in this Court. There is no opportunity, much less
assurance, that any other court will reach the Dormant
Commerce Clause claims at issue in this case and it is
certain that Wyoming and Montana will not receive
any direct relief, let alone “full relief.” Jurisdiction in
this Court is even more critical in this case because of
the important foreign policy interests of the United
States at stake.
CONCLUSION
For the foregoing reasons, this Court should grant
the Motion for Leave to File the Bill of Complaint.

 37
Respectfully submitted,
BRIDGET HILL
Wyoming Attorney General
JAY JERDE
Special Assistant
Attorney General
JAMES KASTE
Deputy Attorney General
ERIK PETERSEN
Senior Assistant
Attorney General
OFFICE OF THE WYOMING
ATTORNEY GENERAL
2320 Capitol Avenue
Cheyenne, WY 82002
TIMOTHY STUBSON
CROWLEY FLECK PLLP
111 W. 2nd Street
Suite 220
Casper, WY 82601

TIMOTHY C. FOX
Montana Attorney General
JON BENNION
Chief Deputy Attorney General
MATTHEW T. COCHENOUR
Acting Solicitor General
OFFICE OF THE MONTANA
ATTORNEY GENERAL
215 N. Sanders St.
Helena, MT 59601
DALE SCHOWENGERDT
Counsel of Record
MARK STERMITZ
NEIL G. WESTESEN
JEFF J. OVEN
CROWLEY FLECK PLLP
900 N. Last Chance Gulch
Suite 200
Helena, MT 59624
(406) 449-4165
dschowengerdt@crowleyfleck.com

Counsel for Plaintiffs
JANUARY 21, 2020