Climate petition denied by Montana Public Service Commission
Keila Szpaller
(Daily Montanan) In a decision that drew immediate pushback, the Montana Public Service Commission voted unanimously Tuesday against declaring the constitution requires it to consider the adverse impacts of climate change in its work.
The PSC also disagreed it must consider climate in a set of statutes outlined in a petition filed in February 2024 by more than 40 Montana businesses and organizations.
For one thing, the order said making such a declaration would exceed the authority of the Public Service Commission. It said the PSC exercises powers granted by the Montana Legislature, and it is “an administrative agency.”
“It is well established that the Montana Constitution does not allow administrative agencies to issue declarations interpreting the Constitution,” the order said.
The decision elicited quick criticism from the Montana Environmental Information Center and other organizations that petitioned the PSC to consider climate costs including health detriments in its regulation of gas and electric utilities.
“It’s frustrating that this process has dragged on for so long at the PSC just for it to continue avoiding its legal obligation to consider climate change,” said Nick Fitzmaurice, MEIC energy transition engineer.
He said the Montana Constitution is clear, and the state Supreme Court decision in Held vs. Montana “reaffirmed that our right to a clean and healthful environment includes a right to a stable climate.”
He said the MEIC and its fellow petitioners would be exploring their options for how to ensure the PSC “upholds its obligation to protect customers and their utility bills” by considering climate change.
The Supreme Court affirmed in December 2024 that Montanans have a constitutional right to “a clean and healthful environment” in the historic Held decision.
The majority found a law limiting analysis of greenhouse gas emissions during environmental reviews violates the Montana Constitution’s right to a clean environment and stopped the state from acting on it.
But PSC chief legal counsel Lucas Hamilton said that doesn’t mean Public Service Commissioners can make the declarations the MEIC and others want them to make.
Hamilton said “a long line” of Montana Supreme Court cases says that constitutional questions are properly answered by district courts, not administrative officers, like the PSC.
And the right to a clean and healthful environment isn’t the only right that comes up in utility cases, Hamilton said.
“The right to a clean and healthful environment appears alongside other, equally important inalienable rights in the Montana Constitution,” the order said.
For example, Hamilton said Montanans also have the “right to pursue life’s basic necessities,” and the PSC handles questions that address multiple rights.
“In the context of utility service, utilities often provide the means for pursuing life’s basic necessities, right? This is water service. This is sewer service. Heat and light that keeps life going on in a cold state like Montana in certain months of the year.”
The Public Service Commission regulates monopoly utilities, including NorthWestern Energy.
The groups calling on the PSC to consider the impacts of greenhouse gas emissions had argued it has “the most consequential role” on climate impacts given it could promote or discourage investments in fossil-fuel infrastructure.
The groups argued that taking climate into consideration would benefit customer bills, help children who suffer from the effects of bad air, support businesses, such as ski hills, and boost the Montana economy and recreation culture.
In a statement provided by the MEIC, Bridger Bowl Ski Area’s Hiram Towle said the PSC’s decision “further delays a true financial analysis of energy in Montana.”
“As a business responsible for stewarding natural resources, we prioritize protecting the land and maintaining stable operations for current and future generations,” said Towle, general manager. “Climate change and its impact on utility affordability, reliability, and the environment, poses a serious threat.”
In a statement, lawyer Barbara Chillcott, senior attorney at the Western Environmental Law Center, said the PSC should meet its responsibility to the public including the safety of children from wildfires, floods and drought.
“The PSC lists its functions as ensuring ‘ratepayers have continued access to utility services that are affordable, reliable, and sustainable for the long-term,’” Chillcott said. “By its own definition, the commission must take a hard look at how any of its decisions can help blunt the worsening effects of climate-fueled hardships that Montanans are suffering.”
At the meeting, PSC President Brad Molnar and Commissioner Annie Bukacek praised staff for their work on the order — for “brilliant” work and “arduous” effort, Bukacek said.
Molnar said he appreciated the tightly written order by staff, especially because he believes the decision will end up in court.
“I will remind all that this is one step,” Molnar said.
The group had also requested the PSC adopt rules to consider climate costs in the future, and that portion of its petition is pending.