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May 10, 2021

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Six more states join Millennium lawsuit

AGs file brief in defense of Inslee administration over Longview proposal

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LONGVIEW — Six more states have joined the lawsuit over a proposed Longview coal export dock to support Gov. Jay Inslee’s administration, bringing the number of states involved up to 13 — more than a quarter of the nation’s 50 states.

Attorneys general from California, Maryland, New Jersey, New York, Massachusetts and Oregon this week filed an amicus brief in defense of the Inslee administration. The suit, brought in federal court by the parent company of Millennium Bulk Terminals, accuses the governor’s administration of interfering with foreign and interstate trade by denying permits for the controversial project.

“Broadly speaking, this action is about the scope of a state’s authority to exercise its traditional police powers … to safeguard public health, safety and the environment. (The lawsuit’s) claims directly threaten these traditional and vital state functions,” the states argued in the amicus brief.

Six other states — Montana, Wyoming, South Dakota, Utah, Kansas and Nebraska — have filed briefs in support of the coal project.

The newly filed brief disputes two claims by Millennium’s parent company, Lighthouse Resources Inc., that the Interstate Commerce Commission Termination Act and the Ports and Waterways Safety Act should have barred the Washington Department of Ecology from denying a water quality permit for the proposed $680 million coal export dock.

The attorneys general argue that these two claims don’t have merit because the coal terminal is not a “rail carrier” under the ICCTA and Ecology’s decision does not affect PWSA subjects, such as vessel design, operation or safety equipment.

“We continue to feel confident about the objective and rigorous review conducted by our state agencies, and every state should feel protective of the authority they have to protect their residents from damaging health, safety and economic impacts of any proposed project within their borders,” Inslee’s office said in a statement.

Millennium declined to comment Wednesday because parent company Lighthouse filed the lawsuit.

“Lighthouse welcomes the attention on this case because rail transportation and vessel traffic are important to the flow of goods in commerce,” Vice President of Legal and Business Development Michael Klein said. “Washington state officials have blocked the construction of a marine terminal at a brownfield industrial site to deny landlocked sister states access to foreign markets. We look forward to responding in court.”

Ecology spokesman David Bennett said Lighthouse’s lawsuit directly threatens the state’s right to regulate land use and protect the environment.

“Millennium failed to meet existing water quality standards and would have caused significant environmental harm to the local community and numerous resources. The company acknowledges the multiple, unsolvable deficiencies of their proposal in the many legal challenges it has filed, but seemingly claims for itself the right to ignore them,” he said.

Lighthouse brought the suit against Inslee in January. Cowlitz County, four national trade groups and BNSF Railway have filed briefs in support of Lighthouse’s claims, whereas a coalition of environmental groups have sided with the state.

In May, attorneys general from Montana, Wyoming, South Dakota, Utah, Kansas and Nebraska filed an amicus brief backing Lighthouse, saying Inslee and state regulators are holding coal-producing states hostage by denying the water quality permit.

Millennium’s proposal to build a $680 million coal export facility at the old Reynolds Metals Co. aluminum smelter west of Longview has been in a permitting battle for six years and is currently tied up in many state and federal legal challenges. It would be the largest coal shipping terminal in North America and would allow Lighthouse to ship coal to Asia from its coal mines in the Powder River Basin, which stretches from southeast Montana to northeast Wyoming.

Earlier this month four U.S. senators from Montana, Wyoming, West Virginia and Oklahoma introduced a bill to speed up the permitting process for Millennium by narrowing the scope of the Clean Water Act.

A state board last week upheld Ecology’s denial Clean Water Act certification.

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