Two trains; one parked with coal car after coal car, winding into the horizon as far as the eye can see; the other headed in the direction towards the camera with lights on, also carrying coal. The sky is bleak, the picture is mostly muted browns and yellows.

Coal Infrastructure Projects

State attor­neys gen­er­al are address­ing ener­gy infra­struc­ture projects and needs in their states and regions, includ­ing advo­cat­ing for the inter­ests of com­mu­ni­ties that would be affect­ed by pro­posed coal infra­struc­ture projects. 

Advo­ca­cy in the States

Wash­ing­ton

2017-2021

  • 2017

    In 2017, the Wash­ing­ton Depart­ment of Ecol­o­gy denied a per­mit for the con­struc­tion of a coal export ter­mi­nal near the Colum­bia Riv­er because of the project’s sig­nif­i­cant and unavoid­able adverse envi­ron­men­tal impacts.

  • Jan­u­ary 2018

    In Jan­u­ary 2018, Light­house Resources, the com­pa­ny that sought the con­struc­tion per­mit, brought a claim against the Depart­ment of Ecol­o­gy for the denial of the per­mit. The suit asserts that deny­ing the per­mit uncon­sti­tu­tion­al­ly dis­crim­i­nates against Lighthouse’s efforts to ship coal mined in Wyoming and Mon­tana to Asia from the pro­posed export ter­mi­nal in Wash­ing­ton, and that the Department’s deci­sion is pre­empt­ed by fed­er­al law.

  • August 2018

    Wash­ing­ton Attor­ney Gen­er­al Bob Fer­gu­son has defend­ed the Depart­ment of Ecology’s denial of the per­mit. In August 2018, he filed a motion for sum­ma­ry judge­ment to dis­miss Lighthouse’s pre­emp­tion claims because the relied-upon fed­er­al statutes are not applic­a­ble to the pro­posed coal export ter­mi­nal. That same month, a coali­tion of six attor­neys gen­er­al filed an ami­cus brief in sup­port of Washington’s motion to dis­miss the fed­er­al pre­emp­tion claims. In Decem­ber 2018, a fed­er­al dis­trict court judge sided with Wash­ing­ton Attor­ney Gen­er­al Fer­gu­son and the six attor­neys gen­er­al who filed a sup­port­ive ami­cus brief, in dis­miss­ing the pre­emp­tion claims against the state of Washington.

  • Jan­u­ary 2019

    In the fol­low­ing month, Jan­u­ary 2019, Wash­ing­ton Attor­ney Gen­er­al Fer­gu­son filed a motion to dis­miss the claim that the denial of the per­mit is pre­empt­ed by the for­eign affairs doc­trine. Under the for­eign affairs doc­trine, state laws that intrude upon the fed­er­al government’s exclu­sive author­i­ty to con­duct for­eign affairs are pre­empt­ed through either con­flict or field pre­emp­tion. The Wash­ing­ton motion not­ed that for­eign affairs con­flict pre­emp­tion could not be estab­lished because the Depart­ment of Ecol­o­gy act­ed pur­suant to author­i­ty del­e­gat­ed to the agency under the Clean Water Act and there was no iden­ti­fied fed­er­al pol­i­cy with which the Department’s action con­flicts. Addi­tion­al­ly, field pre­emp­tion did not exist because the state of Wash­ing­ton was exer­cis­ing its tra­di­tion­al respon­si­bil­i­ties for man­ag­ing nat­ur­al resources and had not intrud­ed upon the fed­er­al for­eign pol­i­cy domain.

  • Feb­ru­ary 2019

    In Feb­ru­ary 2019, Wash­ing­ton Attor­ney Gen­er­al Fer­gu­son filed a motion to dis­miss Lighthouse’s claim that the denial of the per­mit uncon­sti­tu­tion­al­ly dis­crim­i­nates against the company’s efforts to ship coal out of Wyoming and Mon­tana to Asia. The attor­ney gen­er­al not­ed that the denial does not place an undue bur­den on inter­state or for­eign com­merce because Con­gress, in adopt­ing the Clean Water Act, autho­rized states, includ­ing Wash­ing­ton, to deny fed­er­al per­mits if states con­clude that a pro­posed project will harm local water qual­i­ty. A coali­tion of six attor­neys gen­er­al filed an ami­cus brief in sup­port of Washington’s motion to dis­miss the Com­merce Clause claims.

  • April 2019

    In April 2019, the fed­er­al dis­trict court judge in Wash­ing­ton sided with Wash­ing­ton Attor­ney Gen­er­al Fer­gu­son in dis­miss­ing the for­eign affairs pre­emp­tion claims. The judge held that there was no con­flict pre­emp­tion as the plain­tiff that assert­ed the claim could point to no express exec­u­tive pol­i­cy that con­flict­ed with Washington’s denial of the per­mit and that there was no field pre­emp­tion as the state was act­ing in an area of tra­di­tion­al state respon­si­bil­i­ty in man­ag­ing its nat­ur­al resources.

  • April 2019

    Lat­er in April 2019, the fed­er­al dis­trict court judge stayed the fed­er­al court lit­i­ga­tion pend­ing the res­o­lu­tion of ongo­ing state lit­i­ga­tion relat­ed to the denial of the per­mit. In May 2019, Light­house appealed to the Ninth Cir­cuit Court of Appeals the dis­trict court’s Decem­ber 2018 order dis­miss­ing the pre­emp­tion claims against the state of Wash­ing­ton and the dis­trict court’s April 2019 stay of the fed­er­al court litigation.

  • August 2019

    In August 2019, in the state lit­i­ga­tion, the Wash­ing­ton Court of Appeals sided with Attor­ney Gen­er­al Fer­gu­son in over­turn­ing a low­er court rul­ing that the Depart­ment of Ecology’s denial of the per­mit was arbi­trary and capri­cious. The court found that Lighthouse’s refusal to pro­vide request­ed finan­cial infor­ma­tion and the Depart­ment of Ecology’s con­cerns about Lighthouse’s finan­cial con­di­tion and busi­ness rep­u­ta­tion” were legit­i­mate rea­sons for deny­ing the permit.

  • Decem­ber 2019

    In Decem­ber 2019, in the Ninth Cir­cuit lit­i­ga­tion, Wash­ing­ton Attor­ney Gen­er­al Fer­gu­son filed Washington’s brief urg­ing the court to uphold the dis­trict court’s April 2019 stay of the fed­er­al court lit­i­ga­tion and the Decem­ber 2018 dis­missal of Lighthouse’s pre­emp­tion claims. Attor­ney Gen­er­al Fer­gu­son not­ed that Washington’s denial of the per­mit was a law­ful exer­cise of its author­i­ty to pro­tect pub­lic health and wel­fare as the project would have adverse impacts on the state’s water and air qual­i­ty. The fol­low­ing month, a coali­tion of six attor­neys gen­er­al filed an ami­cus brief in sup­port of Wash­ing­ton, request­ing that the Ninth Cir­cuit uphold the dis­trict court’s dis­missal of the fed­er­al pre­emp­tion claims against the state of Washington.

  • Jan­u­ary 2020

    In Jan­u­ary 2020, as the Ninth Cir­cuit lit­i­ga­tion con­tin­ued, Mon­tana and Wyoming filed a motion with the Supreme Court for the Court to review Washington’s per­mit denial on the basis of the Court’s orig­i­nal juris­dic­tion over cas­es and con­tro­ver­sies” between states. In their peti­tion, Mon­tana and Wyoming assert­ed that Washington’s denial of the per­mit uncon­sti­tu­tion­al­ly dis­crim­i­nat­ed against Montana’s and Wyoming’s inter­est in trans­port­ing coal mined in their states to Asia, via Wash­ing­ton State, alleged­ly vio­lat­ing the dor­mant Com­merce Clause and the For­eign Com­merce Clause.

  • March 2020

    In March 2020, the Wash­ing­ton State Court of Appeals sided with Attor­ney Gen­er­al Fer­gu­son in uphold­ing the denial of shore­line con­struc­tion per­mits for the coal export facility.

  • June 2020

    In June 2020, Attor­ney Gen­er­al Fer­gu­son sub­mit­ted a brief in oppo­si­tion for leave to file a com­plaintwith the Supreme Court. The brief asserts that the basis of the dis­pute is the denial of a per­mit appli­ca­tion sub­mit­ted by a sin­gle pri­vate com­pa­ny and thus is not prop­er­ly the sub­ject of the Court’s orig­i­nal juris­dic­tion. Addi­tion­al­ly, the brief states that Montana’s and Wyoming’s claims are mer­it­less as Wash­ing­ton act­ed on valid envi­ron­men­tal con­cerns in deny­ing the permit.

  • Octo­ber 2020

    Oral argu­ments in the Ninth Cir­cuit lit­i­ga­tion were held in Octo­ber 2020.

Cal­i­for­nia

2017-2021

  • 2016

    In 2016, the City of Oak­land, Cal­i­for­nia passed an ordi­nance pro­hibit­ing stor­ing and han­dling of coal at the Oak­land Bulk and Over­sized Ter­mi­nal (OBOT). The ordi­nance was adopt­ed in response to con­cerns about the health and safe­ty impacts on near­by West Oak­land res­i­dents of the han­dling and trans­port­ing of coal at the port of Oak­land. West Oak­land is a com­mu­ni­ty of col­or that would dis­pro­por­tion­al­ly suf­fer the impacts of devel­op­ing a rail and marine ship­ping ter­mi­nal on City land at the port. In Decem­ber of that year, OBOT filed a suit chal­leng­ing the ordi­nance as breach­ing the City’s con­tract with OBOT to devel­op a rail and marine ship­ping ter­mi­nal on City land at the port, vio­lat­ing the Com­merce Clause of the Con­sti­tu­tion and as pre­empt­ed under sev­er­al fed­er­al statutes.

  • May 2018

    A judge in fed­er­al dis­trict court in Cal­i­for­nia in May 2018 found that Oak­land had vio­lat­ed the terms of its agree­ment with OBOT, but declined to rule on the con­sti­tu­tion­al and statu­to­ry claims raised by OBOT. The fol­low­ing month, the City noti­fied the dis­trict court that it was appeal­ing the deci­sion to the Ninth Circuit.

  • Decem­ber 2018

    Cal­i­for­nia Attor­ney Gen­er­al Xavier Becer­ra filed an ami­cus brief in sup­port of City of Oak­land in Decem­ber 2018. The brief not­ed that the City had not breached its con­tract with OBOT as the City could not del­e­gate its police pow­er author­i­ty to pro­tect the cit­i­zens of West Oak­land from the harm caused by the han­dling and trans­port­ing of coal at the port.

  • May 2020

    In May 2020, the Ninth Cir­cuit affirmed the deci­sion of the dis­trict court and will not allow Oak­land to bar the export of coal from OBOT

  • July 2020

    In July 2020, Cal­i­for­nia Attor­ney Gen­er­al Becer­ra filed an ami­cus brief in sup­port of Oakland’s peti­tion for an en banc review of the May 2020 deci­sion. The fol­low­ing month, the Ninth Cir­cuit denied Oakland’s peti­tion for en banc review.