MEPA and the Montana Legislature

Long before they gaveled in for the 69th Legislature this January, Montana lawmakers had been preparing to reshape the Montana Environmental Policy Act, a bedrock environmental law that played a starring role in a landmark climate lawsuit brought by 16 young Montanans. 

In Held v. Montana, Rikki Held and her co-plaintiffs argued that Montana’s warming climate has threatened their physical and mental health, economic security, cultural traditions and recreational interests. By taking a lax approach to issuing permits for fossil fuel projects and barring state agencies from analyzing such projects’ climate impacts, the legislative and executive branches have furthered those harms, the plaintiffs argued.

In a pair of landmark rulings, Montana courts agreed with Held and her co-plaintiffs. A Lewis and Clark County District Court judge in 2023 issued a sprawling 103-page ruling finding that “every additional ton of [greenhouse gasses] emitted into the atmosphere exacerbates impacts to the climate” and asserting that Montana’s unique Constitution affords Montanans sweeping environmental protections. 

In December, the Montana Supreme Court upheld the lower court’s order, writing that Montanans’ inalienable right to a “clean and healthful environment” and protections for Montana’s “environmental life support system” encompass a “stable climate system.” The court also referenced MEPA, which first passed the Montana Legislature with just one lawmaker in opposition in 1971, in its decision: “MEPA mandates that the State take a ‘hard look at the environmental consequences of its actions’ before it leaps, which is impossible when the State intentionally refuses to consider an entire area of significant environmental consequences.”

In addition to striking down the Republican-controlled Legislature’s recent attempts to restrict MEPA and limit its use in climate litigation, the state’s highest court directed lawmakers to create a framework for state agencies to inventory and disclose climate impacts when permitting large fossil fuel projects such as the $300 million gas plant NorthWestern Energy fired up last year.

In response, Montana lawmakers have worked up a handful of revisions to MEPA. Several of the proposals circulating at the Capitol have fallen along similar partisan divides to the bills that ended up playing a pivotal role in the Held v. Montana lawsuit; others have struck a more neutral tone.

Industry groups, which have long bristled at MEPA’s use in lawsuits to stall or stymie mines, power plants, timber sales and other large projects, have thrown their support behind a trio of Republican-sponsored bills seeking to define what is — and isn’t — appropriate material to incorporate in environmental reviews and restrict project opponents’ ability to halt projects with court orders. Environmental groups favor the proposal a freshman Democratic lawmaker from Whitefish introduced with 39 Democratic co-sponsors that would implement the Montana Supreme Court’s decision by removing sections of law justices found to be out of alignment with the state’s environmental protections in the Held lawsuit.

With a comfortable majority in both legislative chambers and control of the governor’s office, the tussle over the future of MEPA is the Republican party’s to lose. In the first half of February the aforementioned trio of GOP bills cleared key legislative votes while the bill backed by House Democrats stalled in committee. Whether Republican-sponsored changes to MEPA will pass judicial muster given Montana’s constitutional environmental provisions, often described as the country’s most protective and far-reaching, is a different matter, though. Environmental groups have indicated that litigation could be forthcoming should Republican Montana Gov. Greg Gianforte sign some of the more controversial MEPA bills into law.

As lawmakers approach the halfway mark of the Legislature’s 90-day biennial session, Montana Free Press has rounded up four of the most prominent MEPA bills that have been introduced at the Capitol and their status as of mid-February.

THE INDUSTRY-BACKED BILLS: SENATE BILL 221, HOUSE BILL 285 AND HOUSE BILL 291

Sen. Wylie Galt, a Republican from Martinsdale who first served in the House in 2013, is sponsoring his party’s flagship MEPA bill, Senate Bill 221.

SB 221 spans 14 pages and opens with eight “whereas” clauses that include a recognition of the Supreme Court’s decision in Held v. Montana and an assertion that “there are different scientific views” regarding how much human activity is responsible for the current climate and “the degree to which the curtailment of human activities would affect current trends.”

SB 221 then goes on to outline a legislative stipulation “that the greenhouse gas analysis is intended to satisfy the informational requirements under MEPA and that greenhouse gases will not be regulated.”

SB 221 would specify that a greenhouse gas emissions analysis conducted as part of state agencies’ review of fossil fuel projects would be limited to “reasonably foreseeable” impacts on Montana’s environment arising from “the mining of coal, drilling for oil or natural gas, production of oil or natural gas, compression of oil or natural gas, or burning of coal, oil or natural gas to generate energy for electricity.”

SB 221 outlines which greenhouse gases would be inventoried — carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride — and dictates that upstream and downstream emissions (e.g., those related to the transporting fossil fuels or out-of-state combustion of fossil fuels mined in Montana) are not to be incorporated in the analysis. The latter provision is a departure from federal agencies’ approach to studying greenhouse gas emissions, which was incorporated in a recent approval of an expansion of an existing Montana coal mine. 

Proponents of SB 221 include NorthWestern Energy, the owner and operator of the recently constructed gas plant in Laurel and co-owner of the Colstrip coal-fired power plant; Westmoreland Mining, which operates the coal mine that supplies Colstrip’s plant; the Frontier Institute, a think tank promoting free-market ideologies; the Montana Chamber of Commerce; and various union and construction groups.

Proponents argued that the bill recognizes Montana’s need for affordable and reliable energy, creates predictability for regulators and regulated industries, and includes a “scientifically sound and practical” approach to inventorying greenhouse gasses.

Even with the appeal to industry, two of SB 221’s most notable proponents during the Feb. 3 hearing before the Senate Natural Resource Committee weren’t companies or industry associations. The Montana Department of Environmental Quality, which reviews and issues permits for mines, oil refineries and power plants, supports SB 221, as does the Department of Natural Resources and Conservation, the agency that administers state trust lands and water rights. Both DEQ and DNRC were defendants in the Held litigation.

DEQ Director Sonja Nowakowski told the committee that SB 221 puts “reasonable guardrails” on the impacts DEQ must assess and “avoids bloated MEPA documents and protracted litigation over the scope of these documents.”

“We are committed to analyzing and disclosing information about potentially significant environmental impacts that may arise from actions that we take. And we cannot spend our time endlessly analyzing remote impacts to preempt being taken to court because we didn’t go far enough,” Nowakowski said.

SB 221 opponents argued that it was designed to prop up a declining industry by putting the “blinders on” state regulators and is deepening a partisan divide over an issue that rises above politics — Montanans’ love for the natural world.

Mary Fitzpatrick with the Northern Plains Resource Council argued that climate change threatens the agriculture and outdoor recreation industries by altering precipitation patterns, which in turn creates water quality and supply issues.

“What sense does it make to damage our two largest industries merely to prolong the death of the relatively small, by comparison, fossil fuel industry?” she asked committee members. “Senate Bill 221 allows DEQ to pretend that fossil fuels mined will not be burned, and this is absurd. The only thing that makes mining make sense is to burn the fossil fuels.” 

On Feb. 10, the Senate Natural Resources Committee voted to advance SB 221 to the full Senate for a full vote. Speaking in opposition of the bill, Senate Minority Leader Pat Flowers of Belgrade, who formerly served as a district administrator for Montana Fish, Wildlife and Parks, noted that a change in SB 221 directing agencies to consider “proximate” impacts, as compared to direct impacts, indirect impacts and cumulative effects, rolls back decades of MEPA implementation.

“This is going to be inadequate, the analysis prescribed here, and we will be challenged in court that it’s not complying with the fundamental intent of MEPA nor complying with our fundamental right to a clean and healthful environment in the Constitution,” Flowers said. “I think it will really invite exactly what we don’t want.”

SB 221 handily passed third reading Friday in the Senate chamber, 37-13. Democratic Sens. Susan Webber of Browning, Emma Kerr-Carpenter of Billings, Dave Fern of Whitefish, Derek Harvey of Butte and Sara Novak of Anaconda joined Senate Republicans in voting for the bill.

Republicans took a victory lap Wednesday following the House and Senate floor sessions, holding a press conference to tout the advance of SB 221 and related bills.

In that conference, Galt said lawmakers aren’t going to let Montana be “steamrolled” by environmentalists and underscored that his proposal addresses concerns associated with “burdensome conditions and bureaucratic overreach.”

Speaking after Galt, Nowakowski, with the DEQ, thanked lawmakers for their work on MEPA revisions. She described the package of MEPA bills as helpful for energy affordability initiatives and said “the Legislature is in the driver’s seat” when it comes to permitting standards.

Nowakowski also noted that DEQ convened a bipartisan working group to work on MEPA revisions, a process that took more than a year. As Flowers mentioned during floor debate on measure, SB 221 was not among the consensus-based recommendations that came out of that group.

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A similar roster of proponents and opponents from the SB 221 debate assembled in the House Natural Resources Committee on Jan. 29 to provide comment on House Bill 285, a proposal that builds off a 14-plus-year attempt to limit the use of MEPA analysis in litigation seeking to revoke permits issued by state regulators.

House Speaker Brandon Ler, R-Savage, is sponsoring HB 285, which includes a lengthy introduction incorporating “whereas” clauses addressing the Legislature’s role in setting environmental standards and an enumeration of sections of Montana law codifying those standards. HB 285 also includes new and revised sections of law directing opponents to a permitting decision to file any lawsuits in the county where the project is situated, and gives the Legislature greater oversight in an interpretation of a permittee’s compliance with permitting statutes. 

An 18-page bill that strikes more statute than it introduces — including sections of Montana law dealing with MEPA’ goals and constitutionality — HB 285 is described by Montana Petroleum Association lobbyist Sonny Capece as a bill that would remove “unnecessary regulatory roadblocks.” Conservationist Stephen Capra countered that HB 285 is “gift to the oil and gas industry” that will result in “an onslaught of environmental litigation.”

Representing Westmoreland Mining, lobbyist Darryl James argued that MEPA has strayed from its analyze-and-disclose roots and instead become an “anti-development” tool.

“MEPA is procedural and is not intended to be used to stall the permitting of projects, but despite that clear direction from the Legislature, the district courts pursued their own agendas and leveraged MEPA in a way that was never intended,” James argued in the committee hearing on HB 285. “It’s not a role, it’s not a vehicle, it’s a tool — and it’s your tool.”

Montana Environmental Information Center Deputy Director Derf Johnson countered that MEPA may be a tool to inform the public on project impacts, but “it’s not meant to just be shelf art.” He also highlighted a provision of the bill removing language encouraging the mitigation of identified environmental damages.

“So we’re going to acknowledge that there are these problems, and that’s where the analysis should end? That, to me, is problematic. The whole point of MEPA is to satisfy and assure that we have that environmental protection and that we achieve really good environmental decision-making.”

Building on Johnson’s concern, Peter Dudley with Montana Audubon outlined a “multitude of unanswered questions and unintended consequences” arising from changes to MEPA’s mitigation and remediation components.

MEPA’s mitigation provision has been used to proactively correct a host of environmental and community issues arising from large projects that range from traffic and dust abatement to habitat loss, Dudley argued. He also wondered aloud whether striking that clause would mean for clean-up plans for pipeline developers and efforts to make water rights holders whole in the face of mining dewatering streams and groundwater.

After advancing out of House Natural Resources on Feb. 7 on a party-line vote, HB 285 comfortably cleared the House on Friday by a 57-42 margin.

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Rounding out the trio of controversial GOP-backed MEPA legislation is a bill with a narrower focus, House Bill 291. Sponsored by Rep. Greg Oblander of Billings and 35 Republican co-sponsors, HB 291 would prohibit the state from adopting air quality standards stricter than those incorporated in the federal Clean Air Act.

If passed, HB 291 would remove existing statutes that allow governmental regulators to implement air quality standards stricter than their federal counterparts as long as they take comment, demonstrate that the stricter standard is achievable with current technology and explain why it is necessary to protect public health or the environment.

As with SB 221 and HB 285, proponents argue that Oblander’s bill will create regulatory consistency and predictability for Montana industries.

“Allowing Montana to have higher air quality standards than other states puts us at an economic disadvantage,” Jay Reardon with the Montana Construction Trades Council argued during a Jan. 29 meeting before the House Natural Resources Committee.

Dan Brooks with the Billings Chamber of Commerce said federal standards “are more than adequate” given that the “history of federal regulations shows a significant improvement in environmental quality.” Montanans need not worry about a reduction to their air quality, Brooks suggested.

But to opponent Anne Hedges, executive director of the Montana Environmental Information Center, the federal government is slow to adopt new regulations and not subject to Montana’s unique constitutional framework.

“What we don’t have at the federal level is a Constitution that provides the state and each person shall ‘maintain and improve a clean and healthful environment’ for ‘present and future generations,’” she said, adding that she couldn’t recall hearing so many people profess so much “love [for] the federal government.”

Hedges went on to say that HB 291 bars the state from making science-based decisions including in for “any type of air pollution regulation to address the climate crisis.”

“There’s not going to be any federal regulation of climate change anytime soon” she said, a likely nod to Donald Trump’s recent return to the White House. “That means that this bill would say that the state and the people in the state don’t have a constitutional right to a ‘clean and healthful environment’ that includes a right to a healthy climate.”

Other opponents, such as the Montana Environmental Health Association and the Montana Chapter of the Sierra Club, argued that the health impacts associated with air quality are significant for those with health issues such as asthma. They also said local control should have a place in the discussion. The inversion that plagues the Missoula Valley in the winter and serves as a wildfire smoke settling pond was offered as an example by Rep. Marilyn Marler, D-Missoula, during committee debate on the bill.

Like HB 285, the House Natural Resources Committee passed out of committee on a party-line vote on Feb. 7 and cleared its second reading in the House on Feb. 12 with a 10-vote margin.

HOUSE BILL 229, A LONG-SHOT ALTERNATIVE WITH ENVIRONMENTALISTS’ SUPPORT

Democrats haven’t been exclusively on the defensive when it comes to MEPA. Forty lawmakers co-sponsored House Bill 229, a now-tabled measure that seeks to “implement the Montana Supreme Court’s decision in Held v. State of Montana” by striking the greenhouse gas analysis-ban language the preceding Legislature passed. Although the bill had broad support among Democratic lawmakers, Republicans have leveraged their party’s majority to advance their preferred proposal, SB 221.

In her introduction of HB 229 bill, Rep. Debo Powers, D-Whitefish, argued that it is “more than good housekeeping” and outlined the findings from the Held decision regarding the mechanisms of climate change and its impacts in Montana, which range from a longer and more intense wildfire season to expanded drought, and more frequent heat waves and flooding.

When it went up for a hearing in the House Natural Resources Committee on Jan. 24, a host of environmental and climate groups supported HB 229, as did a Held plaintiff, a Held expert witness and a representative from the Montana American Indian Caucus.

Thompson Smith of Charlo argued that delaying action on climate change will only make implementing the necessary changes harder and lamented that climate change has become a partisan issue at the Capitol.

“We’ve handed down to [future generations] a problem that’s more intractable, more difficult and more expensive to deal with than it would have been many years ago,” he said. “It’s one of the great tragedies of recent American political history that [the environment] has become partisanized. Let’s step away from that. Let’s embrace what the Montana Constitution says.”

Opponents to HB 229, including the Montana Chamber of Commerce and the Treasure State Resources Association, cited their preference for other legislative proposals that would deem Powers’ bill “unnecessary.”

“There [are] better options available,” said Brian Thompson, representing the Montana Chamber of Commerce. “[HB 229] offers no guidance to the Montana DEQ or other state agencies, and it doesn’t change what Montana’s businesses, communities and citizens have to understand after the Held decision, which is, quite frankly, not very clear.”

That argument appears to have resonated with Republicans on the House Natural Resources Committee, who tabled HB 229 on Feb. 7, right before the Senate Natural Resources Committee advanced Galt’s proposal.

Additional debate on the Republican-sponsored MEPA bills is anticipated when they go before their counterpart committees on the other side of the Capitol. Further revisions to MEPA may yet develop, as well: lawmakers have until March 7 to advance proposals without fiscal notes to the opposite chamber, and legislators could also use special procedures to enact last-minute legislation, as was the case with the greenhouse gas analysis ban bill that lawmakers passed at the tail end of the 2023 session.

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