Montana Gov. Greg Gianforte last week signed into law a handful of bills revising the Montana Environmental Policy Act, the state’s 54-year-old “look-before-you-leap” law that directs state agencies to study and disclose large projects’ environmental impacts before issuing permits.
The Held v. Montana ruling issued by the state Supreme Court in December played a prominent role in lawmakers’ handling of MEPA during the 69th legislative session that adjourned last week. In that order, Montana’s highest court faulted the state for failing to consider the climate impacts of fossil fuel projects such as coal mines and power plants in its permitting process.
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MEPA and the Montana Legislature
State lawmakers are debating a half-dozen proposals to change the Montana Environmental Policy Act, a law that passed the state Legislature with broad, bipartisan support in 1971. This year, discussions about MEPA have fallen along party lines, with Republicans backing industry-friendly legislation and environmentalists supporting bills sponsored by Democratic lawmakers.
With about a dozen lawmakers, government staffers and reporters gathered around, Gianforte on May 1 praised majority Republican legislators for their work to “provide certainty to Montana businesses, large and small, that are trying to make a living here in our state.”
“Left unchecked, the [Held v. Montana] rulings would have impacted our energy sector at a time when Americans have seen the cost of electricity soar nearly 30% over the last four years,” Gianforte said, going on to describe the five MEPA bills he signed as an example of “what we can do when we work together.”
One of the new laws, Senate Bill 221, enumerates six climate-warming greenhouse gas emissions that the state must inventory in environmental reviews of energy projects — but explicitly directs agencies like the Montana Department of Environmental Quality not to regulate them.
DEQ Director Sonja Nowakowski said at the press conference that the agency will now develop a guidance document fleshing out how the state will conduct greenhouse gas analyses for both fossil fuel and non-fossil fuel activities.
“These will be very open, transparent processes, and we look forward to engaging with the public and getting everyone’s input as we move forward,” she said. “The work is just beginning.”
Another measure, House Bill 291, bars Montana agencies from adopting air quality standards stricter than their federal counterparts. That’s important in the context of state climate regulations because the Trump administration isn’t expected to regulate emissions for greenhouse gases such as carbon dioxide anytime soon. Instead, the federal government has expanded access to fossil fuels on federal land and worked to repeal a 2009 rule linking climate change to the health of current and future generations.
HB 291 sponsor Rep. Greg Oblander, R-Billings, has previously described his bill as a “straightforward” attempt to push back against “unelected bureaucrats and local regulators” that he said have undermined important segments of the economy.
“If the federal government sets a standard, that’s the bar,” Oblander said at a Feb. 12 press conference state GOP leaders hosted to mark the passage of big-ticket MEPA bills. “We’re not going to let state agencies or local boards move the goalposts just because they feel like they can, or because they’re under pressure from special interest groups.”
Another bill Gianforte signed last week revises MEPA in more general ways. House Bill 285 builds on years of legislative efforts to file down MEPA’s regulatory teeth by specifying that the law is “purely procedural in nature” and “not an act that controls or sets regulations for any specific land or resource use.”
A 27-page bill that strikes a considerable amount of existing code and repeals entire sections of environmental law, HB 285 garnered enthusiastic support from Republican lawmakers and the industry lobbyists with whom they regularly align. Opposition among Democratic lawmakers and environmental groups was similarly strong, if less unanimous. Reps. Denise Baum of Billings, Pete Elverum of Helena, Scott Rosenzweig of Bozeman, Frank Smith of Poplar and Paul Tuss of Havre joined their Republican colleagues in voting to pass HB 285.
Among other changes, HB 285 strikes existing language directing agencies to consider “the potential long-range character of environmental impacts in Montana and … lend appropriate support to initiatives, resolutions and programs designed to maximize cooperation in anticipating and preventing a decline in the quality of Montana’s environment.”
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During the May 1 bill-signing event, HB 285 sponsor Brandon Ler, the Republican speaker of the House from Savage, said the 69th Legislature was “truly a great session when it comes to MEPA reform.”
“With the signing of this MEPA reform package, we’re making it clear that Montana’s environmental policy is about informed decision-making, not weaponizing or litigation,” Ler said. “In the Held v. Montana court case, they tried to twist MEPA into something it was never meant to be — a tool to deny permits and block development. House Bill 285 sets the record straight: MEPA is procedural.”
In a press release after the bill-signing ceremony, Montana Environmental Information Center Executive Director Anne Hedges offered a different view of MEPA and the changes Gianforte signed into law. Hedges described SB 221 and HB 285 as attempts to “reduce MEPA to a paper exercise.” With longstanding protection gone, lawmakers are effectively “gutting a law that has protected transparency and the public for 50 years,” she said in the release.
“With the signing of this MEPA reform package, we’re making it clear that Montana’s environmental policy is about informed decision-making, not weaponizing or litigation.”
House Bill 285 sponsor Brandon Ler
“Without the requirements in MEPA to fully analyze a project’s impacts, the state does not have a mechanism to comply with the public’s constitutional rights to know, to participate, and to have a clean and healthful environment,” Hedges said. “The people of the state will not stand for a loss of these constitutional rights, and so these bills will only result in conflict and wasted state resources.”
While it’s too soon to tell if litigation challenging the Legislature’s overhaul of MEPA is imminent, House Majority Leader Steve Fitzpatrick, R-Great Falls, said in the Feb. 12 press conference related to MEPA that additional back-and-forth between lawmakers and judges is likely “no matter what.”
“That’s not necessarily a bad thing,” Fitzpatrick said. “If we can get some guidance from the courts as to what meets the standard and what doesn’t meet the standard for conducting a MEPA analysis, I think that’s OK.
“Without the requirements in MEPA to fully analyze a project’s impacts, the state does not have a mechanism to comply with the public’s constitutional rights to know, to participate, and to have a clean and healthful environment. The people of the state will not stand for a loss of these constitutional rights, and so these bills will only
result in conflict and wasted state resources.” Montana Environmental Information Center Executive Director Anne Hedges
“Our goal here is obviously to clarify so we can get some certainty for people so they know what they can expect.”
MEPA has played a major role in a variety of energy and mining projects that have come before state regulators — and courts — in the past quarter-century. Projects subject to a MEPA-related legal challenge include an open-pit gold mine proposed for the Blackfoot River drainage, a gold mine a Canadian company sought to build in Paradise Valley and a 175-megawatt gas plant that the state’s largest utility built along the banks of the Yellowstone River.
The lawsuits blocked the two gold mines. Earlier this year, the Montana Supreme Court allowed the Yellowstone County Generating Station’s permit to stand but directed DEQ to inventory the greenhouse gas emissions associated with its operation in order to comply with the Held v. Montana decision.
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