The Laurel Generation Station under construction by NorthWestern Energy as seen on April 14, 2023 (Photo by Darrell Ehrlick of the Daily Montanan)
Two bills that aim to change Montana law in response to a judge’s ruling earlier this month regarding estimated greenhouse gas emissions from a NorthWestern Energy power plant in Laurel are headed to the House floor after clearing the House Natural Resources Committee on Monday.
The committee passed House Bill 971, which was introduced by House Republicans on Friday, out of the committee on a party-line 10-5 vote, as well as Senate Bill 557 on an 8-7 vote, with Rep. Marty Malone, R-Pray, and Rep. Kenneth Walsh, R-Twin Bridges, joining Democrats in opposition on the latter bill.
House Republicans suspended the rules Friday to introduce HB971, which saw its first committee hearing Monday. House Speaker Matt Regier, R-Kalispell, said Friday that a ruling from Yellowstone County District Court Judge Michael G. Moses could have “far-reaching ramifications for the entire state” and said it needed to be addressed through legislation while lawmakers are in session at the Capitol.
Its hearing Monday in the committee contained similar constraints as Friday’s hearing on SB557, as each side got 30 minutes to testify on a schedule that opponents, and some Democrats on the committee, said was rushed and not considerate of the opposition, which outnumbered proponents.
Rep. Josh Kassmier, R-Fort Benton, who is sponsoring HB971, called Moses’ ruling “nonsense” and “scientifically unworkable.” Moses had said that the Department of Environmental Quality did not perform an environmental impact analysis for the Laurel Generation Station and disregarded concerns over carbon dioxide production and the plant’s estimated greenhouse gas emissions in Montana and beyond.
The bill seeks to stop mining and power projects, like the under-construction plant in Laurel, from being analyzed through the lens of the Montana Environmental Policy Act. It also aims to bar the state from analyzing greenhouse gas emissions, the primary contributor to recent climate change, unless Congress adds carbon dioxide to the list of regulated emissions under the federal Clean Air Act.
Many of the same proponents of SB557 who testified at its hearing Friday also testified in support of HB971 Monday afternoon. But also testifying in support was Jim Keane, the Democratic former lawmaker from Butte who was behind the 2011 effort that resulted in a clarification of law that said MEPA only could be applied to the human environment in Montana and not impacts beyond its borders. He said it was the legislature and not the court that made the laws.
“This is what the department has been working under for 12 years. Yet, here we are today because the court has done something to a nice, little, simple bill that said we aren’t going to go outside the borders, and it worked,” Keane said. “We need the language cleaned up. We need to do it within Montana’s borders. This isn’t about a power plant; it’s about all the things we’re going to be looking at. It’s about everything.”
Other supporters included the Montana Chamber of Commerce, Montana Contractors Association, the Treasure State Resources Association, the Montana Petroleum Association, the Montana Coal Council and Americans for Prosperity.
“House Bill 971 offers a very narrow, very targeted solution to the potential chaos created by the recent court ruling,” said Peggy Trenk, lobbying for the Treasure State Resources Association. “It is a predictable solution to the situation we find ourselves in.”
Many of SB557’s opponents also testified against HB971 – including several people living nearby the Laurel plant who said MEPA was their only option to try to block the power plant from encroaching on their livelihoods and health.
“We can’t afford lawyers to push our agenda or split our legislators. Our state agencies like the DEQ are supposed to look out for, and take care of, Montanans and people like us,” said Laurel resident Casey Felder.
Greg McClure said greenhouse gases needed to be regulated in Montana and asked lawmakers if they were willing to sacrifice the environment to support corporate profits.
“It is a knee-jerk reaction to protect a monopoly utility, NorthWestern Energy, development that threatens our air, water and climate,” he said of the bill. “Have we learned nothing the science and the past history in Montana?”
DEQ Director Chris Dorrington, at the hearing as an informational witness, said there was no precedent for the department to regulate carbon emissions or to deny an air quality permit on the basis of carbon emissions.
Rep. Gary Parry, R-Colstrip, asked him without an objective standard how DEQ would know if it had adequately analyzed a permit for greenhouse gas emissions. Dorrington replied that it would likely propose a methodology to do so without further guidance from the courts or legislature.
He also told the committee that though he had not been consulted before Republicans introduced the bill, if the legislature did not proceed with HB971, the DEQ would likely face additional litigation tied to carbon analyses involving various state actions he said would require a climate analysis after Moses’ ruling.
Rep. Tom France, D-Missoula, asked Dorrington and Kassmier why the legislature should not wait for the department to appeal the decision to the Supreme Court before passing the new legislation. He said the legislature didn’t feel it had time with just 15 days left in the session.
“It’s because the decision was made late. I think it was early April when it was made,” Kassmier said. “So, that’s the timing on the bill. We had to come up with a way to make our policy. We are the ones who set the policy, not the judge.”
Kassmier admitted upon further questioning from France that there were provisions in the bill that have nothing to do with Moses’ ruling.
“If we’re going to start letting judges make policy decisions from the bench, as a state, we need to make our policy decisions, put them in law,” Kassmier said.
The committee broke to continue its work on the floor and came back to do executive action on both bills shortly after 7 p.m. Monday.
The committee voted to amend SB557 to put it more in line with the language of HB971 and to strike out a part that said a person or nonprofit challenging a decision would have to identify their source of funding for the challenge.
Rep. Jill Cohenour, D-East Helena, said the amendments didn’t address her concerns and left some of the problems opponents and Democrats said they had with the bill in place, including language that requires someone challenging a permit to prove there has been a violation of a law or regulation before seeking an injunction.
France said he didn’t like either bill but appreciated what he called “forbearance” with HB971 and its language targeted at the greenhouse gas emissions portion of Moses’ ruling. He said the SB557, however, would “wreak havoc” on MEPA and that he preferred if either moved forward, it be HB971.
The committee passed the bill on to the floor in an 8-7 vote.
It also approved an amendment, on party lines, to HB971 that makes slight tweaks to language in the bill. Democrats again spoke up in opposition to both the process by which the bill was introduced and heard in committee and the measure itself.
“I don’t look at MEPA as being a way to stop industry. I think it is the way industry can coexist with its neighbors,” Cohenour said. “It is the only way that the public gets to weigh in on industrial things that are happening in their local community and letting the industry know that we have concerns.”
Parry said that if lawmakers didn’t pass the bill, there would be more obstruction of energy and mining projects, while Walsh pointed to Keane’s testimony as reason to support the bill.
“We’re just addressing the greenhouse gas emissions and corresponding impacts to climate in the state and beyond the state’s border,” he said. “We’re not gutting MEPA by any means. MEPA is a process.”
France went back to the appeal to the Supreme Court, again saying he was troubled the state had not pursued that before the legislature brought a bill forward and suggesting the effort was “almost a blackmail of the Supreme Court.”
Rep. Steve Gist, R-Cascade, also acknowledged the bill was rushed, but said it was an important decision for lawmakers to make before the end of the session. Committee Chairman Rep. Steve Gunderson, R- Libby, said in closing that lawmakers needed to think about the broader perspective of the judge’s ruling and the bill.
“This isn’t about the Laurel gas plant. This is about border-to-border, east and west, north and south, of Montana, within our borders. And it’s going to touch every square inch of that,” he said. “If we didn’t react when we did, if we didn’t put this through, if we wait for what Rep. France was saying, to wait for an appeal, we won’t be here. That’s two years, so I don’t think we’ve got two years to wait.”
NorthWestern Energy Vice President of Supply John Hines said in a statement provided to the Daily Montanan ahead of Monday’s hearing that if permitting criteria are modified after a permit is approved “any project in any sector” would be in jeopardy.
“That kind of risk will have far reaching, negative, consequences for Montana’s economy. It is my understanding that providing certainty regarding the rules and criteria a permit applicant is subject to is what the Legislature is attempting to address,” he said in the statement. “The Yellowstone County Generating Station was permitted based on defined criteria. The permitting process was followed. The order seems to impose additional criteria, beyond what is required by law, and outside that established process.”
The House had not scheduled a date for either bill to be heard on second reading as of Tuesday evening.
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