Bills addressing environmental reviews for Montana energy, mining projects move forward

By: - April 23, 2023 1:51 pm

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

The Montana House amended the legislature’s new bill introduced in response to a Yellowstone County judge’s ruling about greenhouse gas emissions from an under-construction NorthWestern Energy power plant in Laurel on Friday to keep most of the Montana Environmental Policy Act process in place.

The amended version of House Bill 971 now says that environmental reviews of projects cannot include an evaluation of greenhouse gas emissions and their impact to the climate unless it is an evaluation done by both the state and federal government or if Congress says carbon emissions should be regulated under the federal Clean Air Act.

The amendment strips out the part of the original version of the bill that said if those changes to current statute were found unconstitutional, other sections would have kicked in that would have exempted the Department of Environmental Quality from the provisions of environmental policy and protection reviews and environmental impact statements when changing or authorizing permits tied to the Clean Air Act of Montana and several mining regulation acts.

Rep. Josh Kassmier, R-Fort Benton, who is the sponsor of the bill, said he and others wanted to keep the MEPA procedure in place even if the other changes are found unconstitutional and said the amendment was “kind of an agreement” with others who had opposed the bill.

Rep. Marilyn Marler, D-Missoula, told Kassmier she was thankful for the amendments but still opposes the bill, noting the dozens of people who opposed it in the House Natural Resources Committee and the 150 others she said had contacted her in opposition.

Legislative data shows 34 people have sent lawmakers messages in favor of the bill, while 633 have sent messages in opposition.

Rep. Steve Gunderson, R-Libby, who chairs the Natural Resources Committee, said the bill was “good in the way it’s written now with the amendment on it” and reiterated, as he had in committee, that the bill was brought at the last minute because of Judge Michael G. Moses’ ruling on the Laurel Generation Station’s greenhouse gas emissions earlier this month.

House Speaker Matt Regier, R-Kalispell, said it was important for the chamber to move the bill forward because the judge’s ruling, which said the DEQ did not consider carbon dioxide emissions before it issued permits for the plant, could leave Montana with unknowns as to the future of energy policy should every carbon-emitting plant have its permits challenged.

“This bill really cleans that up,” Regier said. “Speaking to the process of this, we did not do anything outside of our process. We used our rules to suspend the rules.”

Kassmier closed by saying the bill aims to clarify that MEPA is a “procedural act that may not be used as a regulatory tool.”

“HB971 is critical to restore the balance of power in Montana to protect Montana’s legislative authority to enact the laws that uphold the constitution as it was intended,” he said.

The bill passed second reading 71-29, with Butte Democratic Reps. Derek Harvey, Donavon Hawk and Jennifer Lynch joining Republicans voting in its favor.

The other bill that has been amended to address Moses’ ruling, Sen. Mark Noland’s Senate Bill 557, was also heard on its second reading in the House Friday.

It now contains similar language about environmental reviews and greenhouse gas emissions as HB971 but also says that only someone who submitted formal comments to an agency’s environmental review can challenge it in court, that they need to post a bond and seek an injunction to try to stop a project.

House Democrats, as they did in the House Taxation Committee, continued to criticize the bill as one that chills public input and the ability for Montana citizens to hold agencies accountable if they feel they are not upholding Montanans’ constitutional right to a clean and healthful environment.

“We have a right to a clean and healthful environment. This bill essentially says that right exists more for the better off and not for the poorer Montanans because it imposes bond requirements that really can keep people from going into court,” said Rep. Tom France, D-Missoula, who added that he believes the bill is “fundamentally unconstitutional.”

“I know how this will work. We will pass the bill; it will go to court. If the court says it’s unconstitutional, then we’ll come back and complain about how the courts treaded on our rights as a legislature,” France added. “That’s not what’s happening here. We should be paying attention to our constitutional duty to protect a clean and healthful environment and provide for our citizens to protect their own right.”

Rep. Gary Parry, R-Colstrip, who is carrying the bill in the House, said the bill was aimed not only at the Laurel plant decision and the Lucky Minerals case involving a gold mine north of Yellowstone National Park, it seeks to deal with future cases involving greenhouse gas emissions.

“As a state, as a nation, as a world, our requirements for electricity and resources is growing exponentially year after year,” he said. “We’re the only country in the world shooting ourselves in the foot, and weakening ourselves strategically by inhibiting the development of resources and energy.”

Rep. Lee Deming, R-Laurel, said he was torn on his vote on the bill. He said many from Laurel have reached out to him to voice their opposition to the bill and the plant. But he supports the power plant project, he said, for when solar and wind energy aren’t being generated.

“At this point, I have to say, if I was going to punch this button in five or two minutes, I’m going to have to vote against it even though I’m generally in favor of this because of the direct impacts to the people of my district,” he said.

Deming ended up being one of four Republican votes against the bill, along with Rep. Mike Hopkins, R-Missoula, Marty Malone, R-Pray, and George Nikolakakos, R-Great Falls. The measure passed second reading 64-35.

According to legislative data, four people have sent the body messages in support of SB557, while 303 have done so in opposition.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

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.