Montana Environmental Policy Act ‘voluntary’ with SB 557, opponent says

Sponsor said bill would help prevent ‘frivolous lawsuits’

By: - April 4, 2023 7:01 pm

A technician monitors a row of solar panel cells. (Photo by Getty Images).

If you don’t think a state agency did a good job on an environmental review, you might go to court and ask for a better look. 

If Senate Bill 557 becomes law, you’ll have to prove that you can pony up money first.

“The court is the one place where you get a level playing field, but what this bill does is it makes it pay to play,” said Anne Hedges, with the Montana Environmental Information Center.

In 1971, the Montana Environmental Policy Act was adopted to guide the way the state handles human activities that affect the environment, according to a citizens’ guide to MEPA.

The Montana Constitution protects people’s right to a clean and healthful environment, and MEPA requires state agencies to analyze the effects of projects on things like fish, wildlife, water and agriculture, for example.

MEPA also “significantly expanded the public right to participate in the decisions of government,” the guide said.

Tuesday, the Senate passed SB 557 on a 30-20 vote on third reading and sent it to the House for consideration. 

In committee and on the Senate floor, sponsor Sen. Mark Noland, R-Bigfork, outlined the changes in the bill and shared the impetus behind it.

He said the bill is intended to address the Montana Supreme Court’s decision that blocked gold mining north of Yellowstone National Park.

In December 2020, the Supreme Court affirmed a lower court’s decision that a 2011 amendment to MEPA was unconstitutional.

Lucky Minerals wanted to look for gold near Emigrant Peak, and the project drew wide and bipartisan opposition. Congressman Ryan Zinke, a Republican, signed a ban on new mining claims in 2018 when he served as Interior Secretary, and U.S. Sens. Jon Tester and Steve Daines, a Democrat and Republican, respectively, supported legislation to protect the area

But in 2017, the Department of Environmental Quality had approved a drilling permit there, and a district court found the approval to be illegal.

However, the court couldn’t stop the project because of the 2011 amendment.

According to the Bozeman Chronicle, the Montana Supreme Court justices found the amendment “stripped judges of their power to prevent unlawful projects from moving forward, causing ‘irreversible mistakes depriving Montanans of a clean and healthful environment.’”

Noland said that order is the backdrop for his bill. Sometimes, he said, people file “frivolous lawsuits” to stop mining projects, timber harvest, or oil and gas production, and the bill limits the people’s ability to file those.

“We want some restrictions so they can’t just do this on a whim,” Noland said.

The bill says only a person who submitted formal comments to an agency’s review can challenge it, and then only based on their earlier comments. It also says the agency needs to first collect money from the person challenging the decision for compiling material to submit to the court.

Additionally, the bill says the person needs to identify their funding sources. Similar to another bill that aims to tax nonprofit spending on litigation — an idea the Department of Revenue said would be difficult to implement — it says money spent on a court challenge isn’t considered “a charitable purpose for a nonprofit.”

The bill also would limit a court’s authority in evaluating an agency’s work.

As proposed in the bill, the court would need to affirm an agency’s decision or environmental review unless it finds it to be arbitrary and capricious – but the court could not make a decision based on whether it is “otherwise not in accordance with law.”

On the Senate floor this week, minority leader Sen. Pat Flowers, D-Belgrade, asked Noland about the line that talks about a project being lawful. In deleting that line, Flowers said the bill appears to indicate an agency can move ahead with a project that violates the law.

“It seems like we are giving state agencies carte blanche to ignore the law with this change,” Flowers said. “Is that correct?”

Noland responded: “That is your interpretation, yes.”

But Flowers argued state agencies shouldn’t get to flout the law: “I think this is a tremendous mistake, and I think all state agencies should be subject to all of our laws.”

The bill was heard in committee last week, albeit with little notice, according to one opponent. The Billings Gazette said the 8 a.m. hearing was scheduled only the night before and the bill text wasn’t available at the time.

In response to a question at the hearing, Derf Johnson, with the MEIC, talked about the Lucky Minerals decision and MEPA. He said the MEPA analysis was found to be deficient on a variety of grounds, so the permit for the exploration in the Paradise Valley was vacated.

“That was the consequence associated with basically the government failing to do its job,” said Johnson, who also noted the MEIC wasn’t a party to the lawsuit, and he wasn’t intimately familiar with it.

But Johnson said that permit being invalidated was a remedy, and without the consequence, he wondered if the government would be allowed to undertake “basically just a paper exercise.” 

“Why have MEPA in the first place?” Johnson said.

Proponents who testified were the Montana Chamber of Commerce, Montana Contractors Association, the Montana Petroleum Association and the Treasure State Resources Association.

Alan Olson, with the Petroleum Association, said it seems like every session, a bill needs to be proposed as a reminder that MEPA is not substantive. As such, he said he wanted to lend his support to SB 557. 

Peggy Trank, with the Treasurer State Resources Association, said over the years, lawmakers have amended and made clarifications to MEPA, and she views SB 557 as another opportunity to make improvements.

Specifically, she said she appreciates the requirement that organizations need to participate in the review process in the early stages — a provision she said applies to her organization, too. It allows agencies to identify problems and fix them early, she said.

“If we’re going to participate in this process, then we need to get engaged up front,” Trank said.

In opposing the bill, Hedges, with the MEIC, said the legislation is significant, and the reason no one had registered to testify online is because of the lack of adequate notice.

Nonetheless, she outlined a litany of problems she sees in the bill.

For one thing, Hedges said, MEPA is “the people’s law,” and it allows all people the right to know what their government is doing. As such, she said all different types of organizations have used it – not just environmental groups.

Citing the Environmental Quality Council, she noted dozens of individuals have challenged MEPA decisions, as have different tribes in Montana, the Park County Stockgrowers Association, the United Property Owners of Montana, and others. 

The MEIC objects to the provision in the bill that says people need to pay for the agency to compile records if they’re going to court, and it also opposes the requirement they need to disclose their funding source.

“Does that mean we have to disclose our membership? Does that mean United Property Owners has to disclose its membership?” Hedges asked. “It sure seems that way.”

She also said most organizations don’t seek injunctions, but the bill would require someone challenging, say, a permit to, “as an initial matter, seek an injunction.” That approach is the opposite of what many organizations are trying to do, she said; rather, they want an agency to follow the law in issuing that permit.

“Stopping a project is a really big deal,” Hedges said. “We just want the law to be followed.”

According to the bill, the injunction can only be issued if the person seeking it can prove they’ll likely win in court on the merits “even before discovery occurs,” and also post “a very large bond” before defending their rights in court, according to the MEIC.

Essentially, the bill makes MEPA voluntary, Hedges said: ​​“This takes the guts, the heart and the soul out of the law.”

The bill is being transmitted to the House, but as of Tuesday, a hearing on it had not yet been scheduled.

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Keila Szpaller
Keila Szpaller

Keila Szpaller is deputy editor of the Daily Montanan and covers education. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana.