Montana Republican lawmakers don’t think much of the state’s constitution (or clean air)

May 11, 2023 4:38 am

An aerial view of a natural gas fired electrical generation station being built near the Yellowstone River in Laurel, Montana. (Photo by Ed Saunders, used with permission).

As much as former Rep. Derek Skees deserved being pilloried for his comments about Montana’s hallowed Constitution being a “socialist rag,” no one seems to believe it more than Sen. Greg Hertz, R-Polson, and his buddies like Sen. Mark Noland, R-Bigfork.

For all the targeting and unconstitutional policies passed aimed at the LGBTQ+ community this previous session, one of the items that got lost in the fury was the assault on the state’s outdoors protections.

Folks are probably familiar with the battle about NorthWestern Energy’s proposal for a natural-gas fired power plant near Laurel, which became a rallying point for Republicans looking to show their unyielding fealty to fossil fuels and corporate utilities.

Fewer may have noticed the overtly hostile attempts to completely stymie any lawsuit challenging mining, extraction and energy.

Hertz led the charge to rework the state’s tax code to impose taxes on nonprofit groups which have the audacity to hold the state to its constitutional promise of a “clean and healthful environment.”  He proposed taxing the litigation expenses incurred by environmental groups. While it ultimately failed, the attack on environmental groups didn’t stop there.

He didn’t target other nonprofits which wage legal battles elsewhere in the state, only those which would dare assert that the state or corporate interests may not have the health or the environment of Montana at the top of mind when it comes to mining or production.

Noland went one step farther with Senate Bill 557, which now requires these same nonprofit groups to either put up impossible multimillion-dollar bonds just to have access to courts to challenge projects like the gas plant in Laurel.

Here’s how it would work: In order for any nonprofit group to challenge any environmental permit, which could cover a variety of topics from clean air, clean water or even zoning, the group must put up a bond equivalent to the amount of money the state or government would lose for one year if it has to litigate.

Taking the Laurel gas plant as an example, NorthWestern Energy has pegged the project at nearly one-third of a billion dollars. That means, under the laws this Legislature just passed, any group wanting to challenge the construction or permitting of the plant which will throw off tons of greenhouse gases and other pollutants, by NorthWestern’s own admission, that an environmental group would have to come up with hundreds of millions of dollars just to get into court.

Anyone who has hired a lawyer knows they’re not cheap. And, this new law means it becomes nearly impossible to challenge any project, no matter how egregious or how legally justified it appears to be.

Suing to ensure your child has an adequate education doesn’t require such a bond. Suing for documents your city government won’t cough up doesn’t require millions upfront. And protecting your right to privacy doesn’t mean being filthy rich.

If there’s a better way to undermine the Constitution and demonstrate contempt for its provisions, I cannot imagine it.

Neither Hertz nor Noland mentioned the real reason for their bills: These environmental groups have a responsible and enviable legal track record. Because they’re nonprofit, they tend to spend money cautiously, which means they only sue when the case is clear-cut. Translation: Lawmakers can’t figure out how to bend the laws to accommodate big monied interests, so they’ve just made it impossible to even get to court.

And, if corporations, mining interests and the fossil fuel industry were really so responsible and as innocent as some lawmakers believe, they wouldn’t need an army of lawyers.

Your constitutional rights shouldn’t be available if and only if you have millions to spend. Our constitutional rights are also meaningless if you can’t sue to protect them.

While SB 557 may eventually wind up like so much legislation recently, tossed out by courts, ruled as patently unconstitutional, it’s absolutely appalling that these same lawmakers who tout their bonafides as law-and-order Republicans hold the law in such contempt. It’s also notable that these are the same lawmakers who also seem to invoke the constitution and liberty so often and yet do so much to undercut and undermine the document.

For all their talk of defending Montana’s way of life, which often is a reference to families and the great outdoors, laws like this stand in stark contrast. If we continue to decimate our environment by degrading its air and water, there’s not going to be much great about the outdoors, and our legacy to our families will be a played-out state, pockmarked by corporate and industrial sites which extracted profit and left the state and its residents with the mess.

History hasn’t repeated itself.

Hertz and Noland are writing laws that would have even made the Copper Kings blush.

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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.