DEQ asking for input, holding listening sessions on updating Montana Environmental Policy Act

By: - September 28, 2023 6:33 pm

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).

The Montana Department of Environmental Quality is holding at least three public sessions next month and has opened a public comment portal to ask for feedback on how to update the Montana Environmental Policy Act, due in part to a judge’s decision this summer regarding greenhouse gas emissions for energy projects.

The DEQ opened a public comment portal Wednesday for people to share their thoughts on modernizing MEPA, how the state can analyze greenhouse gas emissions and climate impacts from permitted projects, and what else departments could do to improve the MEPA process, the agency said. The comment portal is open through Dec. 1.

It is holding listening sessions on Oct. 2 at the Billings Convention Center, Oct. 18 at the Delta Hotel in Helena, and Oct. 19 at a location in Missoula at a site yet to be determined. Each meeting will be held in person from 6-8 p.m., but people will be allowed to join remotely via Zoom.

Rebecca Harbage, the public policy director for DEQ, said Thursday the department was discussing adding a fourth, virtual-only meeting as well.

“DEQ stands behind the intent and purpose of MEPA as a bedrock environmental process,” DEQ Director Chris Dorrington said in a statement. “We also recognize that regulatory frameworks require updating to account for the experiences over the past fifty years. MEPA was adopted in the 1970s. The administrative rules that implement MEPA were adopted in the 1980s. These regulations are showing their age, and it’s time to hear from Montanans about what MEPA should look like today and into the future.”

In a news release, Dorrington noted that MEPA “has been in the spotlight recently” after a Lewis and Clark County District Court judge in August sided with 18 youth plaintiffs in the Held v. Montana case. Judge Kathy Seeley struck down as unconstitutional the so-called “limitation” to MEPA, amended by the legislature this year, which prohibited the state from considering greenhouse gas emissions and climate impacts from energy and mining projects.

Judge Kathy Seeley asks DEQ Director Chris Dorrington a question during his testimony in the Held v. Montana case on Monday, June 19, 2023.
Judge Kathy Seeley asks DEQ Director Chris Dorrington a question during his testimony in the Held v. Montana case on Monday, June 19, 2023. (Photo by Blair Miller, Daily Montanan)

Seeley found that prohibition violated Montanans’ rights to a clean and healthful environment and to protect the state’s natural resources from unreasonable depletion.

MEPA has also played a major factor in recent court decisions involving energy projects in Montana. Part of the reason Republican legislators tweaked the MEPA limitation this spring was because a Yellowstone County judge ruled that DEQ had failed to properly analyze greenhouse gas emissions from the natural gas plan under construction near Laurel.

“We want to start a thoughtful dialogue about greenhouse gas emissions and other topics, and we are seeking input that is balanced and driven by sound science,” Dorrington said in a statement. “Please help us consider what changes, if any, are needed to modernize or clarify MEPA and identify opportunities for agencies to be more thorough, balanced, or consistent.”

The Gianforte Administration has maintained that MEPA is procedural in nature and does not give the state authority to approve or deny permits, but rather works with the state’s environmental regulations and permitting statutes to determine what kind of projects are allowed to move forward and how much they can pollute the air or water.

Harbage said in an interview that discussions with lawmakers and others who utilize the MEPA process about updating MEPA have been ongoing through normal DEQ business since the legislative session about possible statutory changes in 2025.

“DEQ has our own thoughts about what the challenges are within MEPA as we try to implement it for a variety of different levels of complex or simple projects. And we just realized that someone needs to step out and lead this conversation in advance of the 2025 session,” she said.

Harbage said Seeley’s decision in the Held case, which the state will appeal to the Supreme Court, “pushed this along a little faster” now that state agencies are no longer prohibited from looking at climate impacts of projects.

“As a science-based agency, we want to make sure that we’re doing a science-based analysis,” she said.

Harbage said that DEQ wants to figure out ways to streamline the process while making sure its analyses are “thorough and defensible” because the agency often is sued over the analyses.

The hope is that after the public comment period closes and the listening sessions are complete, a working group with legislators and experts will be formed and work on concepts with agency staff, Harbage said. It could look like the Housing Task Force, with recommendations coming out of the group on statutory changes for the 2025 session and potential rulemaking in the interim ahead of the session.

Resources group hopes for ‘bigger look’ at MEPA

Peggy Trenk, the executive director of the Treasure State Resources Association, a policy group made up of mining, timber, and oil and gas companies and interests, said Thursday the organization welcomed the discussion on MEPA and hoped people would approach the meetings “with an open mind.”

“[The meetings] pose an opportunity for folks who do have concerns to bring them forward and allow time, perhaps, for folks who might be looking at legislative changes to understand what matters to people,” she said.

Trenk said her members have been wondering about the future of MEPA after the decision in the Held case, concerned about whether their permits would move forward. She said the decision has created uncertainty, “which is never good for business.”

“But I think this process allows the public a bigger look at MEPA. It’s been around a long time; it’s been touched on piecemeal here and there as issues have come up,” she said. “… I kind of like the idea that DEQ is looking at it in the broad scale, refreshing perhaps where we are with MEPA and what we might change in the future.”

MEIC believes review will only delay action

Derf Johnson, the deputy director of the Montana Environmental Information Center, said while the organization believes MEPA could be improved to better protect citizens and the environment, he believes the government is putting off enforcing the Held decision with the review when it could already be taking action.

He said there are already methods to model climate impacts being used around the country, including measuring the social cost of carbon, and that Seeley’s decision in the Held case means the state should already be using them.

“Our concern here is, in regard to climate-specific stuff, that they’re just trying to punt on actually having to do it,” Johnson said.

Johnson pointed to the DEQ not ordering a supplemental environmental impact statement for a mining permit in southern Montana, and to a Sept. 14 preliminary determination for an air quality permit for a biodiesel plant in Cascade County that did not include a greenhouse gas emissions or climate change impact analysis.

In the determination, DEQ officials wrote the department was aware of Seeley’s decision, but that it was being appealed to the Supreme Court and that the case “is not yet settled.”

“Consistent with our mission and values, DEQ will continue to assess our environmental review process and perform robust and protective analysis,” the determination says.

In the mine permit disagreement, the state told Johnson that since the final environmental impact statement was completed shortly before the Held trial finished, a new supplemental statement would not be prepared despite the MEIC and other groups raising climate change concerns.

Johnson said the MEIC and other environmental groups would make their case for changes to MEPA they would like to see during the public process, but are not pleased by what they see as a way to delay quick action in considering climate impacts of projects.

“We’ll go through a full year of this. They’ll make recommendations to the legislature, and then the legislature will have to go through the process and adopt it. And then, unless there’s an immediate effective date placed on it, which I doubt, it’s not going to go into effect until fall 2025,” he said. “They can do this now. There is nothing in law prohibiting them from doing this now.”

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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.