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).
When Yellowstone County District Court Judge Jessica Fehr asked assistant county attorney Levi Robison where residents who object to the Laurel Generation Station methane-fired power plant could lodge complaints, he answered, “Neither the city nor the county had the authority.”
That was – and remains – the crux of the problem that brought the matter to court, along with four different parties, on Wednesday morning. Meanwhile, the power plant, one of the largest permitted in the past decade, is nearing completion within the shadow of CHS Refinery and next to the Yellowstone River near Laurel.
In the case, nearby residents, Northern Plains Resource Council, and the Montana Environmental Information Center sued the city of Laurel, Yellowstone County, and NorthWestern Energy over the gas plant. The plaintiffs allege the defendants bypassed their constitutionally protected right to participate in government decisions in allowing the gas plant to be built.
But both the city and the county deny they have relevant authority over the property. And NorthWestern argues it sought — and received — proper permits from state agencies to move ahead, and the court shouldn’t interfere.
Residents on nearby Thiel Road have been flummoxed by a dispute between the City of Laurel and Yellowstone County, both of which have consistently claimed neither has the power to decide zoning regulations on what was an unzoned piece of property near the Laurel city limits. As the case has wound its way through the permitting and court process, NorthWestern Energy has continued construction, despite an adverse court ruling from fellow Yellowstone County Judge Michael Moses that said the state had failed to consider greenhouse gases that the plant would produce.
The case is also important because attorneys for the plaintiffs have said that citizens have the right to participate and observe in the decision-making process – a right that’s enshrined in the state’s constitution. But attorney Amanda Galvan said that residents were cut out of their constitutional rights because neither the county nor Laurel had afforded the opportunity to participate or object. It’s a concern that none of the attorneys for any side seemed to dispute, but neither the city nor the county made any recent decisions related to the plant in which citizens could participate.
The location of NorthWestern’s Laurel plant sits within a mile of city limits. Galvan argued that since 1976, both Laurel and state law have allowed the city to govern what happens with the area because of its close proximity to the town.
But Laurel City Attorney Michele Braukmann said that the city couldn’t regulate that area because the county had developed a subdivision plan, which superseded the city’s right to zone that area.
For its part, Robison argued that Yellowstone County will consider zoning in that area in a new, future plan, and that citizens will then have a chance to participate and observe the process. However, since the power plant was permitted on an unzoned piece of land, no one had jurisdiction, and therefore there was no process to participate in.
During the hearing on Wednesday, Yellowstone County also said that it had recently discovered through research that the last time the land was zoned or considered was 2006.
Attorneys for NorthWestern Energy challenged the premise of the lawsuit, accusing residents and the MEIC of “fishing” for a legal opinion that would give them a chance to object to the plant’s construction.
Braukmann also said that residents or businesses who may have property on county parcels do so precisely because there are fewer regulations.
“People buy property in the county all the time because of less restrictive zoning,” she said.
But Galvan said this case wasn’t about re-litigating the decision to construct a power plant close to homes, rather about the court giving clarity to residents about the proper authority. Even during the court hearing, neither Laurel nor Yellowstone County said it had control of the land. However, the county is planning on working through the zoning of that area, Robison said; that process has neither started nor are there any final recommendations for zoning.
Galvan said since 1976, Laurel had exercised the authority given to it by state lawmakers, which allows them to zone within a mile of city limits. She told Fehr Yellowstone County planning had ceded that authority even in its own documents.
“The city cannot just abandon its jurisdiction on a whim,” Galvan said.
Furthermore, she argued that residents have an expectation that both the county and Laurel would follow their own documents.
“People rely on these documents because of where they build their homes, raise their families and locate their businesses,” she said. “This case demonstrates why public participation is so vital. People who are here are left to shoulder the decision without having any say in the matter. There is no way to exercise their right to participate in the process, and it insulates the city from its decision to rewrite its growth policy.”
Substituting the court for the political process
NorthWestern Attorney Harlan Krogh said what is happening is that residents have lost in the political arena and now are asking the judge to substitute her decision for the ones politicians have made.
“I would urge the court to decline to interfere with the process,” Krogh said. “It’s not proper for the court to interject when there is no clear case. They’re trying to get the court to create one.”
Calling such a ruling either an “advisory opinion” or an “academic exercise,” Krogh said the issue will be largely moot because the plant is nearing completion, meaning there’s no possible relief the court can grant that would help residents.
“What may have been confusing in the past is now cleared up,” Krogh said, referring to how the county said it would conduct future zoning hearings on the land.
“Where in the facts of the case do the petitioners have the ability to participate in the process?” Fehr asked.
“I can’t answer that,” Krogh said. “That’s for the city and county to answer. I understand that concern.”
Krogh said NorthWestern has applied for and received all necessary permits to construct the power plant, including approval from state regulators like the Montana Department of Environmental Quality and the Public Service Commission.
“NorthWestern has sought every approval it was required to and did so,” Krogh said. “In each case, NorthWestern Energy was granted the right to construct the plant. And it’s clear that these two entities are working to solve (the zoning) issue.”
He said the matter was akin to “fishing in judicial ponds for legal advice,” because zoning, whether at the city or county level, is discretionary.
“The court should not mandate Laurel to take on zoning issues,” he said. “Quite frankly, the court’s final order would have little effect on the subdivision or zoning issue.”
Krogh also cautioned Fehr that interfering in the process now would set a dangerous precedent where any property owner or nonprofit group could challenge zoning on every piece of property in court.
“What’s the next logical step? The next disgruntled group will try to advance its agenda to make decisions on zoning,” Krogh said. “It oversteps the political process.”
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