Coal Port Proponents Go 0-7 in First Round of Legal Challenge to State’s Denial of Key Permit
August 12, 2016 (Salem, OR) —Today, an administrative law judge upheld Oregon’s decision to reject permits for a coal export terminal at the Columbia River’s Port of Morrow on a wide range of issues. In fact, the coal terminal’s proponents lost on all seven legal issues decided by the judge. Most notably, the ruling rejected an argument made by the coal producing states of Wyoming and Montana that Oregon’s decision was unconstitutional.The closely watched case sidelines ongoing legal maneuvering by Wyoming and Montana over the Morrow coal terminal, and undermines a favored talking point of pro-coal forces who wrongly claim that limits on coal are unconstitutional.
According to the U.S. Energy Information Administration, Wyoming and Montana are among the 10 largest coal-producing states—Wyoming ranks #1 and Montana ranks #6 based on 2014 totals.
“Oregon’s decision to reject the Morrow coal terminal was not just lawful, it was the right decision for the people of Oregon,” said Jan Hasselman, attorney for the environmental intervenors. “Interference with commerce is an empty talking point for pro-coal politicians, not a legitimate limit on states’ abilities to enforce their own laws.”
Specifically, Administrative Law Judge Alison Greene Webster ruled that the Oregon Department of State Lands (DSL) was well within its authority to find that the proposed coal terminal on the Columbia River was inconsistent with state laws designed to protect fishing and existing water users. DSL’s decision neither discriminated against interstate commerce nor created any burden on commerce.
The states of Wyoming and Montana asked the judge to rule that the U.S. Constitution’s Commerce Clause, which grants to the federal government the right to regulate domestic and international commerce, prohibits states from enforcing their own laws to protect the environment and tribal fishing. The judge soundly rejected that argument.
The judge also rejected several other claims raised by the appellants, denying multiple motions by the coal terminal’s proponents, and granting motions by the state, to significantly narrow the issues remaining in the appeal.
The case arises out of the August 2014 decision by the DSL to deny a permit to build a coal terminal exporting 8 million metric tons of coal per year on the banks of the Columbia River. DSL rejected the permit because of the impacts to tribal fishing near the site and because of the applicants’ failure to prepare an adequate mitigation plan.
The proponent of the project, Coyote Island Terminal, LLC ( a coal export project proposed by Ambre Energy) as well as the Port of Morrow, appealed the permit denial. The states of Wyoming and Montana were granted limited party status to support the coal proponents’ appeal.
Columbia Riverkeeper, Friends of the Columbia Gorge, and Sierra Club, represented by lawyers at Earthjustice and the Crag Law Center, intervened in the case to defend the state’s decision.
“The State of Oregon got it right when it denied Ambre Energy’s coal export project. We applaud state leaders for upholding laws that protect what we as Oregonians hold dear—clean water and fishable rivers.” stated Brett VandenHeuvel, Executive Director for Columbia Riverkeeper.
“The Columbia River Gorge is a national scenic treasure and is protected by federal law,” said Michael Lang, Conservation Director for Friends of the Columbia Gorge. “The judge has taken this first step towards upholding the state’s decision to protect this treasure.”
"From the coalfields, to the rail towns, to the ports and even overseas, communities are standing up to the coal industry and winning,” said Cesia Kearns, Beyond Coal Organizer for Sierra Club Oregon Chapter. “Today's victory is one that reflects the leadership of Oregon, but will protect the health, safety, water, and climate for communities near and far.”
The decision today comes in response to “motions for summary determination” filed by the environmental intervenors, the states, and other parties.
If the proponent chooses to move ahead despite the significant setback to its position, any remaining issues will be decided at an evidentiary hearing in November 2016.