Judge: No Constitutional Problem in Oregon’s Denial of Columbia River Coal Export Terminal

Coal port proponents go 0-7 in first round of legal challenge to state’s denial of key permit

Yesterday, 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. Most notably, the ruling rejected arguments 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.

Since 2012, Crag has been working on behalf of a broad coalition of groups to challenge coal export terminals on the Columbia River. Representing Columbia Riverkeeper, Friends of the Columbia Gorge, and Sierra Club, Crag partnered with Earthjustice to defend Oregon’s denial of the permits for the proposed coal export facilty.

“This decision is a huge victory for clean water and salmon habitat,” said Crag attorney Chris Winter, “The State of Oregon made the right decision in rejecting this permit for a dirty coal export proposal on the Columbia River.  We will not allow the coal industry and its shadowy investors to take over our natural resources in the Pacific Northwest.”

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.

Specifically, the Judge ruled that the Department of State Lands 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.  The Department’s decision neither discriminated against interstate commerce nor created any burden on commerce.

The Judge also rejected several other claims raised by the appellants, denying multiple motions by the terminal’s proponents, and granting motions by the state, to significantly narrow the issues remaining in the appeal.  The terminal’s proponents lost on all seven legal issues decided by the Judge.

The case arises out of the August 2014 decision by the Oregon Department of State Lands (DSL) to deny a permit to build an 8-million ton/year coal export terminal 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 Terminals, LLC 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 proponents’ appeal.

Columbia Riverkeeper, Friends of the Columbia Gorge, and Sierra Club, represented by lawyers at Crag Law Center and Earthjustice, intervened in the case to defend the state’s decision.

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The states of Wyoming and Montana asked the Court to rule that the 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.  Administrative Law Judge Alison Greene Webster soundly rejected that argument.

“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. “We are happy that the Judge has taken this first step towards upholding the state’s decision to protect this treasure.”

The decision 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.

Read the decision.