Updated April 27, 2023: The Senate Judiciary Committee passed House Bill 971 after a two-hour hearing on April 26. Along party lines, the majority-Republican committee voted to advance HB 971 to the Senate floor.
One of the 2023 Legislature’s most controversial and commented-upon environmental proposals advanced Monday after two key votes.
Rep. Josh Kassmier, R-Fort Benton, is sponsoring House Bill 971, which seeks to change how large projects are considered under Montana’s permitting process. Shortly after an amended version of HB 971 passed the House Monday, the Senate voted 35-14 to suspend its rules to allow for its debate there, a step necessary for the bill to advance given its late introduction.
HB 971 is currently scheduled for a Wednesday morning hearing before the Senate Judiciary Committee. If it’s approved by that committee, it will go to the full Senate for a vote.
The original version of HB 971 had two primary components. The first would explicitly prevent state agencies such as the Montana Department of Environmental Quality from considering greenhouse gas emissions in its analysis of large projects. The second part included a contingency clause: should the Montana Supreme Court find that the state has a duty to analyze greenhouse gas impacts, mines and power plants would no longer be subject to review under the Montana Environmental Policy Act, the “look-before-you-leap” law that directs the state to take a comprehensive look at large projects. HB 971 opponents described that section of the measure as an attempt to discourage the judicial branch from issuing climate-sensitive rulings for energy projects.
Kassmier last week successfully introduced an amendment striking the second part of the bill. In its current form, HB 971 deals solely with greenhouse gas analyses. The measure would prevent the state from preparing environmental reviews that include “an analysis of greenhouse gas emissions and corresponding impacts to the climate” within or beyond Montana’s borders. There is an exception, however, for carbon dioxide emission analyses required by federal law.
According to Kassmier, the bill’s late introduction can be explained by a Yellowstone County judge’s ruling April 6 that took a dim view of the state’s exclusion of greenhouse gas impacts in an order revoking NorthWestern Energy’s permit to build a gas plant in Laurel. (Construction of the 175-megawatt plant, which had been underway for about a year and is estimated to cost $283 million, has since halted, though NorthWestern has said it will appeal the order.)
During an hourlong hearing before House Natural Resources on April 17, the bill drew so much public interest that most of the more than 60 opponents who registered to speak about the measure were able to offer only their name for the record. As of Tuesday morning, 35 people have registered their support for HB 971 in a tally prepared by Legislative Services, as compared to 718 in opposition.
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In a call with reporters Tuesday morning, Senate Majority Leader Steve Fitzpatrick, R-Great Falls, said he had not seen the amendment the House added. (Fitzpatrick was HB 971’s original requestor and proposed the rules suspension to accommodate its introduction in the Senate.)
“I don’t know what [the amendments] do,” Fitzpatrick said. “We just brought the bill over, we suspended the rules, and it’s going to go to a hearing. We’ll see what comes out of that.”
On the Senate side of the chamber, HB 971 will be heard by the body’s Judiciary Committee, rather than its Natural Resources Committee.
“I think it fits in there well,” Senate President Jason Ellsworth, R-Hamilton, said Tuesday morning. “We have a good Judiciary Committee, and I think it will be well-vetted there.”
Yellowstone County District Judge Michael Moses’ ruling halting the Laurel gas plant’s construction — the development that prompted HB 971’s late introduction, according to Republican leadership at the Capitol — has spotlighted the tension between the legislative and judicial branches of government.
During the House Natural Resources Committee hearing on the bill, Rep. Kassmier said the state can’t wait for a Supreme Court ruling on the Laurel gas plant to make changes to Montana law.
“If we’re going to start letting judges make policy decisions from the bench as a state, we need to make our policy decisions — put them in law,” he said.
The judiciary’s interest in climate-sensitive rulings are front of mind for many Montanans. In June, a district court in Helena will hear arguments on Held vs. Montana, a youth climate change case that’s garnered national attention. That lawsuit seeks to compel the state to inventory and reduce greenhouse gas emissions as an affirmation of the plaintiffs’ constitutionally enshrined right to “a clean and healthful environment for present and future generations.”
HB 971 also comes as the Legislature weighs Senate Bill 557, a measure seeking to make sweeping changes to MEPA, the section of Montana law that implements the environmental protections included in the 1972 state Constitution. If passed, SB 557 would require parties opposed to a permitted project to seek an injunction to halt its progress and post a bond to cover the cost of the project’s lost revenue. As of Monday, it has passed third reading in both the House and the Senate. Since the House amended the measure, it’s currently awaiting a concurrence vote in the Senate.
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