Weeks before the 68th Legislature, Montana lawmakers garnered national attention with news that Rep. Steve Gunderson, R-Libby, was considering a measure to revise Montanans’ right to a “clean and healthful environment” afforded by the state’s 50-year-old Constitution. Although that effort ultimately floundered, it illuminates a source of tension that carried through the session: Republican lawmakers’ frustration with environmentalists’ success styming large natural resource projects.
Gunderson may have hit pause on his bill — he put the draft request for LC 2385 on hold in late December and left it there — but the Republican supermajority in Helena found other ways to support industry objectives, with ramifications for how large mines and power plants are permitted and whether local governments can steer their communities toward sources of cleaner energy.
ENERGY GENERATION AND ACCESS TO JUDICIAL REMEDIES
One of the most controversial environmental proposals of the session was a latecomer to the Capitol. House Bill 971 was drafted in response to a court ruling in early April that revoked an air quality permit NorthWestern Energy, Montana’s largest monopoly utility, had secured to build a gas plant in Laurel.
Leaning on supermajorities in both houses, Republican lawmakers suspended the rules to allow for the introduction of HB 971, which would prohibit the state from considering greenhouse gas emissions and climate change-related impacts, both inside and outside Montana’s borders, in environmental reviews. Despite its late introduction, HB 971 garnered plenty of comment from the public, both in committee hearings and messages submitted to lawmakers. Members of the public submitted more than 1,000 comments on the proposal, 95% of which were in opposition.
House Bill 971 seeks to bar state agencies from analyzing greenhouse gas impacts in its environmental reviews of large projects. One of the most controversial and commented-upon environmental measures of the 2023 legislative session has been transmitted to the Senate following two key votes.
Republicans remained stalwart in their support of the measure, though. It garnered support from all 101 of the Legislature’s Republicans, save one: Sen. Brad Molnar of Laurel. Gov. Greg Gianforte has not yet weighed in on HB 971.
Some of the broad GOP support for HB 971 can be explained by Republicans’ frustration with rulings like the one issued by Yellowstone County District Court Judge Michael Moses, which Senate Majority Leader Steve Fitzpatrick, R-Great Falls, described as “one of the more atrocious pieces of judicial activism” he’s encountered. HB 971 bill sponsor, Rep. Josh Kassmier, R-Fort Benton, also referenced tension between the legislative and judiciary branches of government during a HB 971 bill hearing.
“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 into law,” Kassmier told his colleagues at the Capitol.
Alan Olson, a former lawmaker who’s now the executive director of the Montana Petroleum Association, argued that allowing Moses’ ruling to stand would give the state an unworkable mandate without guidance about how to analyze such impacts.
“Until we get guidance from the federal government through the Clean Air Act, we should not be regulating greenhouse gas emissions,” Olsen said in a May interview with Montana Free Press. “It would essentially become litigation bait — it would become grounds for suit on another step in the process.”
But Anne Hedges, Montana Environmental Information Center’s director of policy and legislative affairs, said the discussion around SB 971 and its passage through the Capitol suggest something different. She said lawmakers don’t appear to believe humans are causing the climate to warm, despite scientific consensus to the contrary, or put much stock in the separation of powers and the independence of the judiciary.
“These guys want to power grab — grab power away from the judiciary,” Hedges said. “And that’s horrifying.”
Measures seeking to thwart environmental groups like Hedges’ from seeking judicial redress for contentious permitting decisions also found a receptive audience, if not quite as unified, among Republican lawmakers this session.
Senate Bill 557 sponsored by Sen. Mark Noland, R-Bigfork, puts stricter parameters around environmental groups’ access to the Montana Environmental Policy Act, the 52-year-old “look-before-you-leap” law that directs the state to take a comprehensive look at the impacts of large projects such as mines, power plants and timber sales. It requires groups challenging state permitting actions to post a bond before filing a lawsuit and to seek a preliminary injunction, a tough-to-reach legal standard that would immediately halt a project. Noland said he requested the bill in response to a judge’s decision that directed the state to conduct further analysis of Canadian company Lucky Minerals before allowing a Paradise Valley gold mining operation to proceed.
Three bills seeking to prohibit local governments from restricting petroleum-based fuels or requiring solar- or EV-ready wiring are winding through the Montana Capitol, largely along party lines.
The Montana Supreme Court has denied an appeal brought by Canadian mining company Lucky Minerals, effectively voiding its permit to conduct exploratory drilling for gold in a remote area north of Yellowstone National Park, and marking the culmination of a years-long campaign to prevent mining in the Emigrant Gulch area.
SB 557 underscores that MEPA is supposed to provide a procedural rather than regulatory framework for permitting decisions, Noland told his colleagues. It’s intended to prevent “good people, good companies” from losing revenue due to “frivolous lawsuits,” he said.
Opponents to that measure, including a grassroots group that opposes the mine, questioned whose interests the bill furthers and argued that it would prevent local organizations from effectively representing the concerns of individuals and businesses living with its impacts.
“I don’t know what you are trying to fix — it sure looks like a foreign mining company called and asked for this bill on their behalf,” Michelle Uberuaga with Park County Environmental Council said in a hearing on April 17, adding that prominent elected officials on both sides of the aisle endorsed their efforts to stop the mine in recent years, including Gianforte, who was serving in the U.S. House at the time.
“Most Montanans are not billionaires — if this bill had been in place, our community could not have afforded to go to court,” Uberuaga said.
On May 2, prominent PCEC member and Chico Hot Springs owner Colin Davis submitted a letter to Gianforte, signed by nearly 250 residents of nearby communities, urging him to veto the measure. “As you know, Park County is an important hub for outdoor recreation and tourism in Montana. SB 557 may remove an important tool our businesses can use to ensure tourists still want to visit and spend money in the Big Sky State,” the letter reads. “We urge you to veto SB 557 because the financial barriers it creates could result in harm to the waters, landscape and economy of the Paradise Valley.”
As of May 8, the measure is still awaiting a decision from Gianforte.
LOCAL CONTROL, CLIMATE ACTION POWER PLANT PRE-APPROVAL
During this session, lawmakers also went on the offensive for fossil fuel and monopoly utility interests. House Bill 284, for instance, restores NorthWestern Energy’s access to pre-approval, which allows a regulated utility to insure the recovery of the costs of large projects before building them. HB 284 does so by extending the opportunity to Montana-Dakota Utilities, the state’s other monopoly power company, thereby resolving the “special act” issue that led a Missoula judge to strike down NorthWestern’s access to pre-approval last year. HB 284 passed both houses with broad support and was signed into law in late April.
Lawmakers also went to bat for fossil fuel interests by expanding the section of Montana law detailing regulatory arenas that are explicitly off-limits to local governments, e.g., cities and counties. In April, legislators passed Senate Bill 228 and Senate Bill 208, measures that prevent a local government from prohibiting the use, transport, connection or reconnection of petroleum-based fuel sources. They also passed House Bill 241, which would prevent a local government from requiring solar panels, solar panel-ready wiring or electric vehicle charger-ready wiring in new construction.
The sponsors of those measures acknowledged that no such regulations have been proposed by Montana cities but maintained that their bills serve Montanans by preserving access to a variety of energy sources and preventing unnecessary expenses in the already-expensive prospect of building a new home.
Opponents, including representatives from the cities of Bozeman and Missoula [both of which have adopted aggressive plans to reduce greenhouse gas emissions] argued that what was really being debated was local control. Bills like those forwarded by Rep. Kassmier and Sen. Jason Small, R-Busby, interfere with Montanans’ ability to influence government decisions at the most immediate, accessible level, they argued.
Makenna Sellers, executive director of the Montana Renewable Energy Association, said that while MREA’s members are disappointed that lawmakers endorsed bills like HB 241, the political divide between fossil-fuel boosters and clean-energy advocates in the Legislature is not necessarily reflective of Montanans’ feelings about energy policy. Consumer interest in rooftop solar, for example, spans the political spectrum, Sellers said.
“There’s still this partisan positioning around deciding which energy sources are worthy of our time and investment,” she said, “but that’s certainly not what we’re seeing on the ground.”
This story was updated May 11, 2023, to correct Sen. Mark Noland’s title.
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