Montana Republicans take aim at environmental reviews, regulations

Newly introduced bill, existing bill target judge’s decision on Laurel power plant

By: - April 14, 2023 7:23 pm

The Laurel Generation State being built by NorthWestern Energy near Laurel. (Photo by Darrell Ehrlick of the Daily Montanan)

The Montana Legislature introduced a new bill Friday that would exempt the Department of Environmental Quality from adhering to air quality and emissions standards when authorizing or changing permits, effectively banning regulation of greenhouse gasses, which the House Speaker said was being done because of a ruling last week regarding NorthWestern Energy’s Laurel Generation Station plant under construction in Yellowstone County.

Judge Michael G. Moses ruled last week that the DEQ did not perform an environmental impact analysis and disregarded concerns over air quality and carbon dioxide production when it issued permits for the gas-fired power plant in Laurel.

House Republicans and Democrats gaveled in the floor session Friday afternoon and immediately met with their respective caucuses, which is where House Speaker Matt Regier, R-Kalispell, told Republicans about their move to suspend the rules and introduce the new bill.

“There was a ruling there on the energy plant in Laurel, and it addressed climate change, which is new. It’s something that could have far-reaching ramifications for the entire state of Montana. For projects going forward, it’s a big question mark,” he told the caucus.

He said since the legislature was already in session, it was a decision the body should address while it is Helena.

“We’re the legislative branch; that is our job,” the speaker said.

Regier said the House and Senate had been working together to come up with draft legislation regarding Moses’ ruling. That bill is House Bill 971 and is sponsored by Rep. Josh Kassmeier, R-Fort Benton.

The bill says environmental reviews could not include “an evaluation of greenhouse gas emissions or corresponding impacts to the climate in the state or beyond the state’s borders” unless they are conducted by a state agency and a federal agency “to the extent the review is required by the federal agency” or if Congress “amends the federal Clean Air Act to include carbon dioxide emissions as a regulated pollutant.”

The bill contains a clause that says if part of the measure is found invalid, other portions would remain in effect. The bill would go into effect immediately once signed by the governor.

It also says that if the Montana Supreme Court finds the changes made to the section of the bill amending statute on environmental impact statements is found unconstitutional or void, newly created exemptions would be effective “the day after the effective date of the voidness or of the finding of unconstitutionality.”

The new exemptions under the bill would allow the DEQ to be exempt from the provisions of environmental policy and protection reviews and environmental impact statements under Title 75 when authorizing or changing permits in conformance with the Clean Air Act of Montana; the Strip and Underground Mine Siting Act; Coal and Uranium Mine Reclamation; Metal Mine Reclamation; and Opencut Mining Regulation statutes.

Construction at the Laurel Generation Station is already underway, but Moses in last Thursday’s ruling ordered DEQ to go back and perform carbon dioxide and lighting assessments before permits can be re-issued for the project.

He wrote the DEQ failed to follow the Montana Environmental Protection Act in issuing an air permit “that dismissed some of the plant’s most troubling impacts with minimal analysis, improperly deferred others for future consideration and overlooked some harm entirely.”

Moses wrote that the department did not fully address concerns about the carbon dioxide emissions – 769,706 tons per year – the plant is estimated to produce once online.

He also said the department had not considered greenhouse gas emissions in Montana because the law says it can’t consider the impacts beyond the state.

Moses’ ruling calculated the plant in Laurel would emit 23 million tons of carbon dioxide that would impact Billings downwind.

Montana’s constitution guarantees Montanans’ rights to “a clean and healthful environment,” which was one prong of the environmental groups’ lawsuit against the permits issued for the Laurel power plant. Moses wrote last week those constitutional arguments were not yet ripe for argument.

The U.S. Supreme Court last summer put limits on the federal government’s ability to impose new regulations on greenhouse gas emissions from power plants under the Clean Air Act. The U.S. Environmental Protection Agency says greenhouse gasses are the primary contributor to recent climate change.

Anne Hedges, the director of the Montana Environmental Information Center, called the bill effectively a MEPA repeal, siding with federal regulations instead of the state constitution, and said the measure was likely to land in court.

“It’s like dropping a nuclear bomb when you could use a rifle,” she said.

Just two hours after the bill was introduced, Sen. Mark Noland, R-Bigfork, introduced an amendment to his Senate Bill 557 during its hearing in the House Natural Resources Committee that contains strikingly similar language as the newly introduced House bill.

The amendment says that a challenge to an agency’s decision that an environmental review is not required or was inadequate based upon greenhouse gas emissions and impacts to climate in Montana and other states cannot void or delay any lease, permit, license, certificate or authorization unless the review is required by the federal government, or Congress includes carbon dioxide as a regulated pollutant.

The amendment also strips out a requirement criticized by opponents of his bill that would have required a person challenging a decision to identify their funding sources.

Noland deferred most questions about the amendment to Steven Wade, representing the Montana Contractors Association and Montana Chamber of Commerce. But the sponsor also said the amendment was linked to Moses’ ruling on the Laurel power plant.

Proponents and opponents each got 30 minutes to testify at the hearing, though there were double the opponents. Several were Montana residents living either nearby the Laurel plant or near Chico Hot Springs who had utilized the current process to challenge project permits.

“I have no idea what the bottom line is and who’s truly backing the move to cut MEPA, but it doesn’t feel like it’s an individually, locally owned business that’s really a stakeholder in Montana,” said Colin Davis, who owns Chico Hot Springs. “… It’s a classic, in my mind, David and Goliath situation. And are we willing to sell out Montana, take away an individual citizen’s ability to stand up for themselves?”

Proponents said the bill would be good for business in Montana and keep lawsuits over permits from stopping projects – perhaps causing companies to cut jobs or move off the projects altogether.

Several Democrats on the committee said they found it interesting that Noland’s bill received an amendment the same day the House introduced Kassmier’s bill with similar language.

After the hearing, the committee had been set to consider the amendment to Noland’s bill, but the committee chairman decided that it would instead hear HB971 on Monday and then do executive action on both at the end of the hearing.

The DEQ is not taking a position on either bill, an official told the Daily Montanan.

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Blair Miller
Blair Miller

Blair Miller is a reporter based in Helena who primarily covers government, climate and courts. He's been a journalist for more than 12 years, previously based in Denver, Albuquerque and mid-Missouri.