Laura Lundquist

(Missoula Current) A Montana working group has published suggestions for interpreting Montana’s public process law, but there was clearly a lot of disagreement on what the recommendations should be.

On Tuesday, a 19-member working group chosen by the Department of Environmental Quality published several draft recommendations on how state agencies should possibly implement or change the Montana Environmental Policy Act.

However, the working group's document starts off by noting that “inclusion of recommendations in this draft does not indicate that the recommendations had the support of all members of the work group.”

The working group will accept public comments on the recommendations until its May 29 meeting. The public can also comment during the meeting, which is scheduled from 3 to 4:30 p.m. in Helena. A Zoom option is available.

The document addresses how DEQ and other agencies should incorporate climate change into their analyses of permits and projects; what kinds of education are needed to make MEPA processes more effective; and what area of government should oversee MEPA and how. But the biggest question dealt with what should be done to clarify what MEPA is and isn’t or whether having the Legislature try to make such clarifications would end up diminishing MEPA.

According to the document, “There is disagreement amongst the Process and Applicability subgroup about the need for further clarification on the intent of MEPA as some believe the law is already clear. Some may also prefer to rely on recent judicial interpretation.”

The Legislature passed MEPA in 1971, creating a state policy for using public input to help evaluate projects or activities that could affect Montana’s land, air and water, such as mining or managing waste. But recently, the Department of Environmental Quality under Governor Greg Gianforte decided it wanted to explore how MEPA “should be modernized to reflect the experiences of the past fifty years and the demands of today’s contemporary society.”

DEQ held four public listening sessions last fall to gather input on the MEPA prior to creating the working group. But DEQ’s vague explanation of its intent created confusion for many of the more than 300 citizens who turned out for the listening sessions in Billings, Butte and Missoula. Many expressed worries that the Gianforte administration would further reduce MEPA protections.

Now, after four months of meetings, those citizens can tell the working group whether DEQ or the Legislature should be allowed to clarify the law.

The document states an opinion that MEPA is supposed to be procedural, defining a process to inform decisions, and is not substantive or regulatory, although that is a question “of ongoing and seemingly nuanced debate.”

“Some public perceptions and even recent District Court decisions indicate confusion between the procedural nature of MEPA and the substantive nature of regulatory statutes such as the Clean Air Act, the Clean Water Act, the Metal Mine Reclamation Act and many others,” the document states. It then proceeds to list a number of court rulings that have issued different opinions of what MEPA is supposed to do.

It follows by saying all the state’s environmental laws provide environmental protections so MEPA is only there to serve a procedural role. The document says MEPA should not be used to stop a permit or project. It goes further to say that some industries believe the current application of MEPA lacks balance.

Therefore, one recommendation is that “the Legislature should re-organize and restate statutory language to clarify the legislative intent that MEPA is procedural, and distinctly different from the substantive statutes that regulate environmental impacts.” Also, the language would state that no permits could be delayed just because of a MEPA challenge.

However, the document notes that some subgroup members disagreed with allowing a permit to be issued when there was a MEPA challenge. Not allowing the public to seek legal redress raises constitutional questions. Also, some felt any legal ramifications related to MEPA do not require a “major overhaul of the process.” DEQ and the Legislative Environmental Quality Council could do a better job of informing the public as to what is allowed and expected under MEPA.

Recommendations have been made related to climate change considerations as a result of Montana’s climate change lawsuit, Held v. State of Montana, which resulted in a Helena district court ruling that said the constitution requires the state to consider the climate impacts of proposed projects under MEPA. The state appealed and the Montana Supreme Court has yet to rule. But in the meantime, the working group decided that some temporary procedures need to be set up to add climate analyses to the MEPA process.

The climate subgroup recommended having a Legislative interim committee evaluate different climate models and statutory frameworks to allow departments to consistently evaluate climate change factors. In the meantime, DEQ should operate as if the Supreme Court upheld the district court’s ruling and develop procedures to quantify the greenhouse gas emissions of each project, explain assumptions and alternatives and identify possible mitigation measures.

According to the document, “this interim study can encourage legislators from both sides of the aisle to have an open mind and thoughtfully weigh the pros and cons to certain approaches on climate analysis.”

Contact reporter Laura Lundquist at