Commentary: Inslee uses ‘regulatory wall’ to stop coal terminal

The governor and state agencies are being sued for rejecting permits for the Millennium terminal.

By Ken Eikenberry

Gov. Jay Inslee has placed his political ideology above national policy and law by blocking the export of coal with sneaky agency rulings.

The governor has touted his plan to leverage his powers — and those of state agencies — to build a “regulatory wall” around the state of Washington. That wall, by design, has blocked development of the infrastructure needed to expand coal shipments bound for foreign markets in Asia.

The presence of a strong ideology on the part of an elected official is far from uncommon, nor is it intrinsically bad. But Inslee and his team — specifically Department of Ecology Director Maia Bellon and Commissioner of Public Lands Hilary Franz — have consistently pursued their anti-coal ideology at the expense of their obligation to uphold the rule of law.

This case of misplaced priorities has dire implications. Washington’s aggressive use of its regulatory powers to advance a political agenda has eroded the state’s investment climate, undermined long-established processes critical to the development of improved and expanded infrastructure, and stood firmly — and intentionally — in the way of interstate and foreign commerce.

This amounts to agency activism at its worst. And it is cause for concern for any Washingtonian with an interest in a government that considers the issues facing the state on their merits, not through the lens of stump-speech talking points.

The state’s effort to justify the denial of key permits based on the environmental impacts of moving coal by rail provides a telling window into the strained logic and stretched jurisdiction that have plagued this debate.

This February, Burlington Northern Santa Fe filed a motion with the U.S. District Court for the Western District of Washington, seeking to join a lawsuit against Inslee, Bellon and Franz over the permits denied to the Millennium Bulk Terminal project. The suit alleges that the defendants misused their regulatory authorities to prevent interstate and international commerce and, in doing so, violated the U.S. Constitution’s commerce clause and other federal trade laws.

The state’s logic in pointing to rail issues in denying the permits is terminally flawed. In focusing on the transportation of the commodity rather than on the site-specific impacts of the terminal itself, the state is eschewing long-established processes for determining the viability and impact of a project. What’s more, the focus on rail amounts, in effect, to an attempt to govern what companies may ship which commodities on the region’s interstate rail system. A bold move in any situation, and even more so given the fact that federal law pre-empts state law when it comes to railroad operations.

This is a de facto attempt to regulate the railroad as it crosses from other states into Washington — an attempt undertaken in a manner that creates undue burden on the flow of commodities across state lines. It doesn’t take a legal scholar to recognize this as a violation of the Constitution’s Interstate Commerce Clause.

The jurisdictional and constitutional concerns are clear and provide ample justification for the suit against the state. But a consideration of the actual merits of their findings — that the addition of up to eight trains per day running from mines in Wyoming and Montana to the proposed terminal would create unacceptable environmental impacts — shows that even if the state did have jurisdiction, its denial would still be difficult to defend.

In 2010, the state’s Department of Transportation conducted a study on the environmental impacts of eight passenger trains per day across the Washington. Their findings? That the increase in rail traffic would cause no significant environmental impact.

By the letter of the law, the factors considered surrounding those passenger trains should have been the same as those considered in review of the coal trains. Unfortunately, the letter of the law was not followed — and the resulting decision has the potential to constrain the ability of carriers like BNSF to move commodities across the state.

Inslee and his agencies have shown, time and again, that they are willing to step outside the intended scope of their authority in order to advance their agenda. That’s not their job, and it can’t be allowed to continue. The courts must vacate denials that were made based on rail impacts, and they must put the facts — not politics — back in the driver’s seat.

Ken Eikenberry served as state Attorney General from 1981 to 1993.

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