The Montana Supreme Court has halted an expansion of a Westmoreland-operated mine that supplies the Colstrip power plant with coal. The court’s decision vacated an 8-year-old permit that allowed Westmoreland to pull 12 million tons of coal from the Rosebud Mine located in southeastern Montana.
The environmental concern at issue related to water quality impacts to the East Fork of Armells Creek, an intermittent stream that flows into the Yellowstone River. The Montana Environmental Information Center and the Sierra Club argued that allowing strip-mining operations in AM4, a 49-acre parcel in Area B of the mine, would result in material damage to the waterway by increasing the creek’s salinity to the detriment of one of its established beneficial uses: the support of aquatic life.
The order, authored by Chief Justice Mike McGrath and signed by the court’s six other justices, largely affirmed a lower court’s ruling. It nullifies the AM4 permit, disallowing mining in that area. Prior to arriving at the Montana Supreme Court, DEQ’s decision in 2015 to approve the expansion had been weighed by the Board of Environmental Review (a quasi-judicial, governor-appointed body) and the Sixteenth Judicial District Court.
MEIC Co-director Anne Hedges said the Montana Supreme Court sided with her group in finding that the DEQ was wrong to ignore water quality impacts when it granted the permit.
“The court said you have to consider cumulative impacts. You’ve known since 2006 that water in the area is already impaired because of salinity and you did not consider those things, and that is not OK,” Hedges said. “We absolutely hope that this decision helps prevent harm from occurring at the other areas of the mine that have been permitted [since the AM4 amendment was approved]. This is an enormous mine that has hammered water quality and everybody has turned a blind eye to that for a very long time.”
Westmoreland spokesperson Jon Heroux said the decision is not expected to compromise mine operations.
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“While we don’t agree [with the Supreme Court’s decision], we’re happy to continue working with DEQ,” Heroux told Montana Free Press. “In the end, there is no operational impact to the mine, the delivery of coal to Colstrip will not be impacted, and our other permits are not impacted at this time.”
Heroux added that Westmoreland stopped mining AM4 about a year ago and “pulled the coal that was required out of it.” Mining in AM4 had been allowed to proceed while the Supreme Court considered the appeal.
The ruling comes six months after Gov. Greg Gianforte signed a bill seeking to loosen regulations surrounding water quality and coal mining. Though signed into law by Gianforte and designed to be retroactive, House Bill 576 hasn’t yet gone into effect. DEQ agreed to hold off on implementation until federal mine regulators have had a chance to assess its compliance with the Surface Mining Control and Reclamation Act.
Earlier this month, Montanans living near coal mines told federal regulators about mining-related threats to water quantity and quality. Some of the hearing participants expressed fear that under HB 576 those impacts would worsen because the state would effectively raise the bar for what qualifies as “material damage” to a waterway. A decision from the Office of Surface Mining and Reclamation regarding HB 576 compliance with federal law is expected in January.
MEIC and the Sierra Club have challenged other expansions of the Rosebud coal mine, which is the sole source of fuel for Colstrip’s coal-fired power plant, in other judicial venues. In February 2022, a federal judge in Billings directed the Office of Surface Mining and Reclamation to redo its analysis of a 6,500-acre expansion of the Rosebud Mine that was proposed to extend its operational life by at least eight years and expand its size by 25%. The judge in that case found that federal mine regulators failed to consider impacts to surface waters and endangered pallid sturgeon and erred by excluding “the economic costs of greenhouse gas emission” in its analysis.
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