Groups sue to force PSC to decide on climate-change rulemaking

Laura Lundquist

(Missoula Current) For months, the Montana Public Service Commission has delayed a decision to modify rules regulating power utilities to account for climate change, so several organizations have returned to court to force action.

Last week, 11 organizations, including Climate Smart Missoula and Missoula-based 350 Montana, filed a writ in Missoula County District Court to force the PSC to either accept or deny a petition for rulemaking.

Previously, they and 29 other Montana businesses and organizations submitted a petition on Feb. 28 asking the PSC comply with its statutory and constitutional duty to consider the harmful effects of climate change in its regulation of public utilities. The PSC heard comments from more than 50 proponents of the petition during an April 8 meeting.

State law requires governing bodies to deny or initiate rulemaking within 60 days of receiving a petition. So the PSC should have made its decision by April 28. Instead, when the PSC met on April 30, it voted to extend the public comment period another 60 days until July 1.

The 11 organizations doubted commissioners’ claims that they wanted more public input. So on May 9, the organizations filed a formal objection with the PSC, pointing out that the PSC was breaking the law by not acting within 60 days. On May 28, the PSC met for its normally scheduled meeting but took no action on the petition, although one commissioner made a motion to deny the petition.

So, on June 6, the 11 organizations filed their complaint in Missoula County District Court to get a judge to order the PSC to act immediately so the rule could be issued before the beginning of October. There’s some time pressure because, according to state law, no rulemaking can occur during the three months prior to the start of the Legislative session. The organizations say they suspect the PSC is extending the public comment period to delay rulemaking just long enough that they won’t have time to complete it before the Legislative window closes.

“The Commission will have plenty of opportunity to ask questions of the petitioners and solicit further public comment after it initiates the rulemaking process,” said Nick Fitzmaurice of the Montana Environmental Information Center. “The time for such discussion is during the rulemaking process, and we will gladly engage and answer questions at that time. The petitioners provided the PSC with extensive documentation of its legal authority and obligation to initiate rulemaking, as well as overwhelming scientific evidence of the climate crisis and the risks posed to utility customers should the PSC continue to ignore the problem.”

The 11 organizations include the Montana Chapter of the American Academy of Pediatrics, Bridger Bowl Ski Area, Citizens for Clean Energy, Climate Smart Missoula, Families for a Livable Climate, Gallatin Valley Sunrise, Helena Hunters and Anglers, Montana Environmental Information Center, Northern Plains Resource Council, Park County Environmental Council, and 350 Montana.

The youth climate lawsuit, Held v. Montana, led to a ruling last August that allows Montana’s decision-makers to consider the greenhouse gas emissions and climate impacts of state-authorized projects, but agencies are not under any substantive obligation to withhold approvals. But that led to state agencies having to evaluate if and how they would consider the effect of greenhouse gases with certain projects or permits.

For example, the Montana Department of Environmental Quality created a working group that studied aspects of the Montana Environmental Policy Act and how climate change effects might be included. Much of the debate involved whether or not to calculate the social cost of climate change caused by any project.

According to the original 40 petitioners, the PSC, with its broad oversight authority over Montana utilities, has the most consequential role of any governmental body in the state in determining Montana’s contribution to greenhouse gases that cause climate change.

The PSC has recently been involved in decisions to allow NorthWestern Energy to build a natural gas power plant in Laurel and to continue to depend on coal-burning power plants in Colstrip, both of which would add tons of carbon to the atmosphere.

Although the PSC has refused to act, next week, the Legislative Environmental Quality Council will review the petition that was sent to the PSC and the process the PSC has followed to consider it.