The stack of legal briefs supporting a federal lawsuit over a proposed coal terminal in Longview continues to grow.
The Association of American Railroads filed an amicus brief Tuesday arguing that state regulators’ denial of permits for Millennium Bulk Terminals’ $680 million export facility represents an illegal attempt to limit rail traffic.
And the Western States Petroleum Association filed an amicus brief Wednesday arguing that a series of permit denials have contradicted federal foreign policy by threatening to disrupt the sale of U.S. energy to the nation’s allies.
The associations join a list of groups supporting the project that includes Cowlitz County, four national trade associations and the states of Montana, Wyoming, Utah, South Dakota, Nebraska and Kansas.
The underlying lawsuit was brought in January by Millennium’s parent company, Lighthouse Resources, Inc. The suit — filed in U.S. District Court in Tacoma — accuses Washington Gov. Jay Inslee, state Director of Ecology Maia Bellon and Commissioner of Public Lands Hilary Franz of improperly blocking the project based on a bias against coal. BNSF Railway has filed to intervene as a plaintiff in the suit, and a coalition of environmental groups including Columbia Riverkeeper have filed to intervene as defendants in support of Inslee and state officials.
Lawyers for the state of Washington have argued that local and state decision-makers denied four separate permit applications because Millennium failed to show it could mitigate for a range of unavoidable adverse environmental impacts. The state has also asked the court to abstain from hearing the case until a series of state-level challenges to the various permitting decisions play out.
But the railroad group argued in its Tuesday brief that the state illegally based its decision to deny Millennium’s permit applications largely on the growth in rail traffic the massive terminal would generate.
At full buildout, the terminal would move up to 44 million metric tons of coal from mines in Montana and Wyoming to Asia through the site of the old Reynolds Metals Co. aluminum plant in West Longview. That would result in about eight 1.5-mile-long unit trains passing through the city every day, according to the project’s final environmental review. The terminal would boost U.S. coal coal exports by 40 percent.
Bellon cited the effects of increased rail traffic — including its effect on safety, noise pollution and cultural resources — when she denied a water quality certification for the project last September. Millennium has challenged the decision, arguing the project’s final environmental review found no adverse impact on water quality.
“Whether it is done directly or indirectly, regulation of rail transportation by Washington is not permitted,” the railroad association’s brief contends.
The association argues that the state’s actions effectively govern rail transportation by dictating the type and quantity of commodities that can be transported by train. Such regulation is illegal under a federal law that prohibits state and local governments from attempting to regulate existing rail networks, according the association’s brief.
The brief notes that coal accounted for 32 percent of all tonnage on U.S. Class I railroads last year, far more than any other commodity. Coal also accounted for 14 percent of all rail revenue in 2016, according the railroad group.
Defendants argue the regulated activity is Millennium’s plan to construct an export terminal — not the transportation of coal by a rail carrier. Additionally, a ruling in favor of Lighthouse could allow any entity that handles goods transported by rail to claim federal preemption from local and state environmental protection laws, according to the state’s lawyers.
In a motion to dismiss Lighthouse’s claims, defendants argue that state courts should be allowed to rule on Millennium’s legal challenges before the federal lawsuit proceeds. A state court decision in favor of Millennium would make the federal case irrelevant, the defendants argue.
Judge Robert J. Bryan will hear oral arguments on the defendants’ motion for partial dismissal on May 30.