BNSF seeks to join lawsuit over Washington state denial of coal terminal permit

BNSF Railway Co. has requested to join Lighthouse Resources‘ lawsuit against Washington Gov. Jay Inslee and key members of his administration over permit denials for Millennium Bulk Terminals’ proposed Longview coal terminal.

BNSF’s complaint contends that Washington state officials unduly violated interstate commerce, a violation of the U.S. Constitution’s dormant commerce clause and the ICC Termination Act (ICCTA) by using supposed rail impacts to deny permits for Millennium Bulk Terminals.

When it comes to regulating railroad operations, federal law preempts state regulation, BNSF officials said in a press release.

Lighthouse, the corporate parent of Millennium Bulk, filed its federal lawsuit Jan. 3 to allege that state officials violated the U.S. Constitution and federal law by “unreasonably denying and refusing to process permits to develop a brownfield site on the river where an existing state lease allows coal exports.”

BNSF would have served the export terminal.

“As a common carrier, BNSF is required by federal law to move regulated goods, including coal,” said Roger Nober, BNSF’s executive vice president law and corporate affairs. “Permitting this facility should have followed the long-established process of making a determination based on site-specific impacts; instead they have taken it upon themselves to deny permits based on so-called rail impacts. This is a very clear violation of federal law.”

The Class I’s complaint outlines how state officials violated the ICCTA by using the transportation of coal by rail as the basis for denying permits for the terminal. The complaint also alleges the defendants interfered with BNSF’s ability to engage in foreign commerce through the transport of coal to Millennium for export to Asian markets, which is in violation of the dormant foreign commerce clause.

BNSF’s complaint also contends that state officials’ actions amount to an embargo on American coal exports.