Laura Lundquist 
(Missoula Current) A working group is wrapping up its recommendations on how the state should handle the public engagement process, but several recommendations are still hotly contested.
The Montana Environmental Policy Act working group this week had to extend its meeting by 30 minutes in order to debate the recommendations that will be published in its final report next week. In January, the Department of Environmental Quality chose the 20 members of the working group to develop recommendations on how state agencies should implement or change the Montana Environmental Policy Act.

Last week, DEQ released the draft recommendations to the public, many of which had not received the full agreement of the working group members. DEQ Public Policy Director Rebecca Harbage said more than 40 public comments were submitted during the past week.

“We heard a lot of folks who really, strongly, deeply believe in the intent of MEPA, and that has been a point of conversation in this group. And a lot of folks who don’t want to see any recommendation move forward that seems to weaken any part of MEPA,” Harbage said.

During Wednesday’s meeting, it was the opportunity for the working group members to voice their concerns with the recommendations or how they were worded, and there were plenty.

The working group disagreed on a number of details related to the three recommendations on state consideration of the effects of climate change. Some of the debate was whether the state should conduct a climate “analysis” or an “assessment.” A few members, including Sen. Keith Regier, R-Kalispell, said he preferred “assessment” because it’s more subjective as opposed to an analysis, which can be interpreted as more rigorous.

Talen Montana representative Gordon Criswell added that any analysis should consider only the direct effects of greenhouse gas emissions, because the models used to calculate social cost are controversial. But Anne Hedges, Montana Environmental Information Center executive director, said it was lopsided to consider the economic benefits of a project but not the economic and social costs.

DEQ Director Chris Dorrington said that the social costs of climate change are highly contested.

“Social cost of carbon is a multiplier,” Dorrington said. “If social cost of carbon provides a multiplier, I’m arguing that people can do their own math and say the economic impact of those tons equals this, based on my dollars. I don’t want to become the governor of dollars in a model, and it’s obviously outcome-oriented beyond the responsibility of the agency.”

After a long discussion of whether having DEQ carry out “legal obligations under existing law” meant DEQ could set limits for greenhouse gases or just that DEQ didn’t get to rewrite MEPA, Harbage encouraged members to write up their dissents and submit them by the end of the week.

One recommendation was to create a predefined environmental assessment to fast-track permits related to asbestos, “high and dry” gravel pits and motorcycle wrecking facilities. Hedges said she strongly dissented on the gravel pit permits.

“The uptick in litigation against DEQ over gravel permits really indicates this is not a place to streamline the process. Instead, we need to get a handle on why we’re seeing such an increase in litigation since the (high and dry) legislation passed a few years ago,” Hedges said.

The other item that stirred heated debate within the working group was whether MEPA merely describes how the public process should be carried out or whether the public process has some teeth to the point of prompting the denial of a permit or project.

Darryl James, an energy and natural resource development consultant, wrote the recommendation that says Montana’s laws, such as the Mining or Clean Water Act, provide protection for the environment and MEPA just the process to provide a review of any impacts of a project. But Hedges disagreed.

“We think this section is trying to revise 25 years of case law, it’s trying to pretend like those decisions by the court didn’t in fact happen, and it completely repurposes MEPA. This is where Darryl and I disagree about substantive vs. procedural and what those two things mean,” Hedges said. “We think this section really misrepresents the state of the law and it would be a great disservice if people read this and thought this is how the law is supposed to be implemented today because it’s in error.”

James said the Legislature writes the laws, so it was up to the Legislature to look at the case law and decide whether more clarification was needed in the law to ensure MEPA was procedural.

“Is there language that’s confusing to the courts? Such as when every substantive statute starts with “mindful of our obligation of the Constitution to provide a clean and healthful environment.” That also appears in MEPA. The courts looked at that and said clearly, that’s meant to be substantive because it says the same thing that all the substantive statutes say. Well, maybe that was a miscue to the courts.”

After several minutes of back-and-forth, Harbage said the final report would say there was “significant dissent.”

Hedges asked Harbage how the final report would address all the dissent.

“We disagree strongly with some of the text,” Hedges said. “So how are you going to write the disclaimers? Do we have to say every single word that we think is wrong?”

Harbage said DEQ staff had decided that the report will emphasize that the subtask leads were responsible for writing the recommendations and the dissent for each recommendation would be summarized.

Jon Bennion, Washington Companies representative, said the working group report was meant as a public engagement tool and should not be cited in litigation.

“This was a good faith effort to have a public conversation, and for it to be misused, whether in litigation or otherwise, would be harmful to public engagement,” Bennion said.

The one item that had no dissent was the fact that MEPA designated the Legislative Environmental Quality Council as responsible for overseeing MEPA and how state agencies handle the public process, but it has done little recently to carry out that responsibility.

“There must have been a feeling somewhere along the way that the job was done. EQC quit focusing in that arena. But as we’re discovering now, the law has continued to evolve as case law has been applied. And it’s time for the EQC to resume their responsibility there.”

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