Former state AG: Washington fuel export tax not likely to survive court challenge
Feb 24, 2022, 10:58 AM
(Getty Images)
(Getty Images)
As the battle over a fuel export tax proposed by Washington state Democrats escalates, there are questions surrounding whether it would stand up against an inevitable court challenge.
Washington’s proposed gas export tax is ‘unacceptable,’ says Oregon governor
The proposal — wrapped into a $16 billion transportation package — would levy a 6 cent per gallon tax on fuel refined along the Puget Sound, which is then shipped to states like Oregon, Alaska, and Idaho. Leaders in all three states have roundly criticized the tax, floating various retaliatory proposals of their own in what could soon become a full-blown interstate trade war.
And as some have argued, there’s a chance that the largely unprecedented export tax may even violate the federal commerce clause.
“The Constitution says states can’t put tariffs on products imported from other states, or make them more expensive when they’re shipping them out to other states,” former Washington Attorney General Rob McKenna told KIRO Newsradio’s Dave Ross.
“It is striking that this has not been done before,” he added. “I think, partly, it’s because there’s a good argument that it’s not constitutional, but also partly because states shouldn’t try to start trade wars with each other.”
Lawmaker proposes taxes on fish, boats in retaliation for WA fuel export tax
Washington’s own justification centers on how it takes on the environmental risk of refining fuel exported to Oregon, Alaska, and Idaho with little in the way of compensation from those states. The plan is to then take the money raised by the export tax and use it to fund climate change mitigation.
But if the tax does go into effect, McKenna predicts that affected states are likely to prevail in the event they take Washington to court over it.
“I think the state of Washington will lose in federal district court and trial court, and then I think they’ll lose in the Ninth Circuit,” he predicted. “There is a lot of case law around the commerce clause, and looking at the facts here, it looks like a pretty strong case for Alaska, Idaho, and Oregon when they bring (a lawsuit), and I think they will.”
Listen to Seattle’s Morning News with Dave Ross and Colleen O’Brien weekday mornings from 5 – 9 a.m. on KIRO Newsradio, 97.3 FM. Subscribe to the podcast here.
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