11th-hour bill seeking changes to environmental regs passes committee

Along a party-line vote, the House Natural Resources Committee advanced a controversial 11th-hour bill that seeks to change how power plants and mines are permitted in Montana. Despite limited notice for the hearing, the House Natural Resources Committee meeting Monday night was packed with commenters, most of whom opposed the bill.

House Bill 971 seeks to prevent the Montana Department of Environmental Quality from analyzing power plant and mining projects with the Montana Environmental Policy Act, the five-decades-old, “look-before-you-leap” law that implements environmental protections included in the 1972 Montana Constitution. If HB 971 passes, DEQ would be directed to evaluate large projects with more focused laws such as the Clean Air Act, the Metal Mine Reclamation Act and the Opencut Mining Act.

HB 971 also includes a provision that would expressly prohibit the state from evaluating greenhouse gas emissions “or corresponding impacts to the climate in the state or beyond the state’s borders” unless such reviews are required by federal agencies or the federal government starts regulating carbon dioxide emissions under the Clean Air Act.

The parts of the bill precluding DEQ from conducting MEPA analysis on projects that require air quality, underground mining, surface mining or open-cut mining permits won’t go into effect immediately, although they would go into effect if the greenhouse gas provision in the bill is deemed unconstitutional by the Montana Supreme Court.

The bill is a late arrival to the Capitol. Members of the House voted late last week to suspend their rules to accommodate HB 971, which was introduced nearly six weeks after the transmission deadline for general bills. The bill was drafted in response to a Yellowstone County judge’s finding that DEQ unlawfully failed to consider greenhouse gas and lighting impacts when approving a gas plant that has garnered opposition from Yellowstone County residents and climate advocacy groups.

NorthWestern Energy, Montana’s largest utility, started building the 175-megawatt gas plant in Laurel last spring. In a ruling April 6, nearly a year after hearing arguments on the matter, Yellowstone County District Court Judge Michael Moses sided with the environmental and concerned citizens’ groups in an order invalidating the air quality permit DEQ issued in 2021.

Moses referenced a law prohibiting DEQ from including “actual or potential impacts that are regional, national or global in nature” in his ruling. He wrote that that piece of Montana law “does not absolve DEQ of its MEPA obligation to evaluate a project’s environmental impacts within Montana” and that the agency “misinterprets the statute.” DEQ, he wrote, “must take a hard look at the greenhouse gas effects of this project as it relates to impacts within the Montana borders.” NorthWestern Energy said it would appeal Moses’ ruling, which it described as “extreme.”

The recency of the judge’s ruling and lawmakers’ desire to prevent state judges from legislating from the bench explains the bill’s late introduction, HB 971 sponsor Rep. Josh Kassmier, R-Fort Benton, told the House Natural Resources Committee. He said that the courts have used a “nonsense” and “scientifically unworkable” interpretation of a 12-year-old law barring the state from using MEPA to analyze climate change impacts outside its borders.

The Montana Petroleum Association, Treasure State Resources Association, Montana Coal Council, Montana Chamber of Commerce, Montana Contractors Association and Americans for Prosperity voiced support for the bill, as did former lawmaker Jim Keane, a Democrat from Butte who sponsored the 2011 measure that Kassmier referenced in his comments. Ten proponents offered testimony.

Peggy Trenk, executive director of the Treasure State Resources Association, said HB 971 offers a solution to the “potential chaos” created by the court ruling directing state agencies to analyze greenhouse gas impacts without providing guidance for that analysis. Should the Legislature opt not to act, agencies, project applicants and members of the public would be denied any sense of predictability in the permitting process, she said.

More than 60 opponents testified, and most were unable to offer more than their name since committee chair Steve Gunderson, R-Libby, allowed just one hour for testimony and questions. Andrew Gorder, the legal director for environmental group Clark Fork Coalition, told committee members that the hearing was “fundamentally unfair from a process standpoint.”

Opponents included three Laurel residents against the plant’s construction, as well as representatives from the Blackfeet Tribe, Families for a Livable Climate, Montana Environmental Information Center, Big Sky 55 Plus, Montana Audubon, the city of Bozeman, climate youth advocacy group Gallatin Valley Sunrise, Forward Montana, Gallatin Wildlife Association, Montana Conservation Voters and the Montana chapters of the Sierra Club and Backcountry Hunters and Anglers.

Laurel resident Kasey Felder said, besides the MEPA process, she and her neighbors were offered “zero consideration” in the plant’s permitting, despite their proximity to it. 

“I’m here because MEPA works,” Felder said. “We’re not rich people; we can’t afford 12 lawyers to push our agenda or sway our legislators. … MEPA gave us a chance to be considered.” 

Craig McClure described HB 971 as a “knee-jerk reaction” to protect a monopoly utility development with air, water and climate impacts.

“Are we willing to sacrifice our environment to protect corporate profits?” he asked. “Have we learned nothing from the science and the past history in Montana? Think of the legacy you will be leaving our grandchildren. Oppose House Bill 971.”

Chris Dorrington, the director of DEQ, appeared as an informational witness. 

In response to questions from committee members, he said he was not consulted in the drafting of HB 971. He said he believes that the department lacks statutory authority to deny an air quality permit based on carbon emissions. The agency, he said, has not decided if it will appeal Judge Moses’ ruling.

Two hours after the HB 971 hearing wrapped up, the committee voted on party lines to advance a slightly amended version of the bill to the full House over Democrats’ frustration with a process they described as needlessly rushed. Before the vote, Rep. Gary Parry, R-Colstrip, said the bill seeks to address a problem he’s been fighting the entirety of his career, that of “obstructionists that are trying to stop industry.”

“As long as they don’t have any skin in the game, they’re going to keep doing that,” he said. 

Rep. Tom France, D-Missoula, said he appreciates Parry’s point of view but disagrees with Parry’s suggestion that there’s a “dark they” at work. 

“We have heard from citizens on both the MEPA bills we’ve heard that are in good faith trying to protect their communities,” he said. “We could see them right here.”