Groups take Laurel, Yellowstone County and NWE to court for methane power plant

Environmental groups say without jurisdiction, there’s no route to challenge large plant

By: - October 20, 2022 6:06 pm

The city of Laurel and the Highway 212 bridge crossing the Yellowstone River (Photo by Darrell Ehrlick of the Daily Montanan).

Yellowstone County hasn’t stopped the project.

The City of Laurel said it can’t.

But a large gas-fired power generation plant being planned by NorthWestern Energy has begun moving ground, even pouring a foundation, according to a lawsuit filed by three groups on Monday, which accuse both Yellowstone County and the City of Laurel of allowing the plant to be built without any local review and without public input.

On Monday, several organizations, including Earthjustice, the Northern Plains Resource Council and the Montana Environmental Information Center took the county, City of Laurel and NorthWestern to a state district court, asking a judge to decide who controls the parcel outside-but-near the city limits. Those groups argue that the inaction has led to a situation where they have no means of appeals or review for the plans that they say will harm the environment and ruin property owners living nearby.

Both Yellowstone County and NorthWestern Energy told the Daily Montanan that they are reviewing the lawsuit.

Meanwhile, the City of Laurel sent a legal opinion it issued to the mayor and city council in May that outlined why it could not exercise “extra-territorial zoning” on a parcel of land that sits close to city limits and nearby a Bureau of Land Management recreation area.

The plans calls for a 175-megawatt generation system of a natural gas-fired plant, consisting of 18 reciprocating internal combustion engines. The design calls for 18 exhaust stacks rising seven stories above the ground.

The reason neither Yellowstone County nor the City of Laurel has taken action rests upon a finer point of Montana law. State law gives cities the power to control land use outside, but nearby, city limits. Laurel’s “jurisdictional area” extends 4.5 miles beyond the limits, while properties within one mile may be required to follow city zoning code. However, state law says Montana cities can extend those zoning rules only if a county has not adopted a land-use planning document. In those cases, the role of zoning reverts to the county.

The City of Laurel says because the county has adopted a countywide land-use subdivision plan, it does not have the power to regulate the land where the new power plant is sited. The city sent the proposal to the county for study, but the county has not taken action or asserted jurisdiction, leaving half the parcel zoned heavy industrial, the other part, agricultural.

The lawsuit claims that NorthWestern Energy has taken advantage of the impasse and is already clearing land and laying a foundation.

“The city’s failure to exercise its jurisdiction to address or enforce current zoning designations on NorthWestern’s parcel causes direct injury to plaintiffs’ ability to participate in the governmental decision-making process,” the lawsuit argues. “By rejecting the zoning jurisdiction over the plant site, the city and the county have effectively allowed NorthWestern to move forward on its building plans free from any local zoning regulation.”

Reverse course?

As plans to build the plant were announced, it appeared the City of Laurel would exercise zoning authority. Until December 2021, city staff and the city council were tackling issue, as was NorthWestern, which applied to Laurel for a rezoning request so that all the land, which lies adjacent to the CHS refinery, would be rezoned to heavy industrial.

On Sept. 15, 2021 the joint city-county planning board forwarded NorthWestern’s rezoning application to the City of Laurel with the recommendation to approve the request.

The city council originally tabled the request, but not before hearing from concerned residents during the course of several meetings.

On Nov. 23, the council sent the issue back to the city-county planning board for further investigation after a planner for the city said the records and findings were “incomplete.”

After that, the lawsuit claims the county has told the plaintiffs groups that the matter belongs to the City of Laurel while the Laurel city attorney has advised the council not to undertake any rezoning.

“The city’s sudden abandonment of its zoning authority opened the door for NorthWestern to build its heavy industrial plant in violation of current zoning designations and ordinances, which the city has explicitly refused to apply and enforce,” the lawsuit said. “NorthWestern has taken advantage of the lack of local government oversight over its properties and is swiftly moving forward with construction. The city’s failure to recognize its zoning authority without any government process to participate in.”

The lawsuit also accuses the city attorney of intentionally stifling conversations and threatening those opposed to the power plant.

“The city attorney has communicated directly with members of the plaintiff organizations, asking them to ‘cease and desist’ organizing constituents and to stop communicating with elected officials and staff over this matter,” the suit contends.

In a letter attached as an exhibit, city attorney Michele Braukmann said, “I also respectfully ask that these communications, moving forward, come through my office. Inundating Council Members that have ‘a lot on their plate’ in respect to city business is not productive, and it further alienates parties/issues.”

Laurel: No obligation to zone

In a legal analysis sent to city staff and the council, Braukmann advised the city not to act on the zoning request, saying that the county is the proper venue to decide the land-use.

“In the present circumstances, Yellowstone County has indicated an intent, pursuant to its growth policy, zoning regulations and subdivision regulations to exercise jurisdictional control over county parcels and properties. While the county has not specifically included the extra-territorial one-mile radius around city limits, the county has not specifically declined to exercise jurisdiction over these properties,” the memo said.

In that detailed analysis, Braukmann said the county has been silent on the issue of extraterritorial zoning, and it doesn’t specify how the issues are to be handled, and what role the city-county planning board would play.

“The City of Laurel has no legal obligation, by statute or case law in the State of Montana, to assume zoning authority over property outside its city limits,” Braukmann wrote. “And, in fact, because of the subdivision regulations that the county has enacted, exercise of such authority by the City of Laurel would be improper.”

The standoff has left residents without a venue to challenge the plant.

“A year ago, both NorthWestern and the City of Laurel clearly agreed that the city had zoning jurisdiction over the land in question,” said Anne Hedges, policy director with the Montana Environmental Information Center. “Since that time, they’ve done a 180 and now pretend that no local government has zoning jurisdiction thereby shutting out community concerns over a large, loud, polluting plant on the banks of the Yellowstone River. The community deserves a voice in what happens in their neighborhood.”

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming.