(Source: BNSF Railway press release, February 28, 2018)
SEATTLE — BNSF Railway Company (BNSF) has requested to join as an intervenor in the lawsuit filed by Lighthouse Resources against Washington Governor Jay Inslee and key members of his administration for violating the U.S. Constitution and other federal statutes.
BNSF’s complaint, which was filed in U.S. District Court in Tacoma, Wash., contends that Washington state officials have unduly burdened interstate commerce, a violation of the Constitution’s dormant commerce clause, and the ICC Termination Act (ICCTA), by using supposed rail impacts to unreasonably deny permits for Millennium Bulk Terminals. When it comes to regulating railroad operations, federal law preempts state regulation.
“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.”
BNSF’s complaint outlines how Washington state officials violated ICCTA by using the transportation of coal by rail as the basis for denying permits for Millennium Bulk Terminals. Federal law preempts state regulation of railroad operations.
The complaint also shows the defendants have interfered with BNSF’s ability to engage in foreign commerce through the transport of coal to Millennium for export to Asian markets, in violation of the dormant foreign commerce clause. BNSF’s complaint also contends that Washington state officials’ actions amount to an embargo on American coal exports, which is also a violation of the foreign commerce clause.
In the complaint, BNSF requests, among other things, a declaration by the court that denials of permits by Washington state based on purported rail-related impacts is a violation of federal law and an order vacating all of the defendants’ unconstitutional and illegal decisions regarding Millennium Bulk Terminals.