Millennium Bulk Terminals-Longview, LLC v. Washington State Department of Ecology

A company proposing to develop a coal export terminal on the lower Columbia River in Washington State filed a lawsuit alleging that the Washington State Department of Ecology (Ecology) and its director had violated federal and state law and the U.S. and Washington State constitutions by denying “with prejudice” the company’s application for a water quality certification under Section 401 of the Clean Water Act. The company contended that the defendants had “turned section 401 on its head by denying the certification based on purported impacts of every kind other than water quality” and said that Ecology “created from whole cloth a uniquely onerous and unfair environmental review process … that it justified based on its animus towards the commodity that would be handled.” The company’s claims included that the Clean Water Act preempted the denial and that the denial order was ultra vires, a misapplication or misinterpretation of the law, at odds with previous Ecology practice, arbitrary and capricious, and unsupported by substantial evidence. In support of its claim that the denial was arbitrary and capricious, the complaint alleged that “[a]lthough the Denial does not mention greenhouse gas … emissions (not even once),” the defendants had speculated on social media about the new emissions associated with the project; the company alleged that the defendants’ social media posts demonstrated their bias against the project. The company also claimed that the denial constituted a deprivation of rights actionable under 42 U.S.C. § 1983 and violated equal protection. The complaint also disclosed claims of preemption under the Ports and Waterways Safety Act and the Interstate Commerce Clause Termination Act and violation of the Commerce Clause. The company said it would soon file a federal lawsuit to pursue these claims.