Keila Szpaller

(Daily Montanan) The Montana Public Service Commission is slow-walking a petition that would require the utility regulator to consider climate change in its decisions and acting outside Montana law, a representative of the group that brought the petition said Tuesday.

“Currently we’re in a process that is not contemplated under the law, and we’re not comfortable operating within that,” said Nick Fitzmaurice, with the Montana Environmental Information Center.

At a meeting of the Public Service Commission, Fitzmaurice said the MEIC seeks clarity from regulators on how to move ahead. According to MEIC, the PSC is more than one month past its allotted 60 days to respond to the proposal by either denying it or launching the rulemaking process.

In an email after the meeting, Fitzmaurice said the MEIC suspects foot-dragging by the Public Service Commission because rulemaking stops on Oct. 1 before a legislative session, and the legislature is in session in 2025.

“It would appear the commission is using this as a stall tactic to run the rulemaking into the rule adoption moratorium beginning three months prior to a legislative session,” he said.

A spokesperson for the Public Service Commission, however, said it is following administrative procedures and responding to the significant interest. PSC spokesperson David Sanders said 730 members of the public had submitted comment as of Friday and roughly 100 more comments came in during the Memorial Day weekend.

In February, 40 organizations and businesses filed the petition asking the Public Service Commission to adopt a new rule that requires consideration of the adverse climate impacts of greenhouse gas emissions in utility regulation.

Proponents argue doing so will benefit power customers, help Montanans who are hurt by bad air, and support the Montana economy. An economic report from 2023 valued visitor spending on outdoor recreation at $2 billion including on big game hunting and sport fishing.

Opponents, however, argue such regulation is outside the authority of the Public Service Commission, and the proposed rule was devised without input from labor and will lead to job losses.

Last month, Public Service Commissioners held a public hearing on the proposal and later voted to extend the period to accept feedback through July 1, 2024. The PSC also raised questions about the proposal for petitioners to address.

Tuesday in a phone call, the PSC’s Sanders said MEIC is making “a pretty sweeping request” for rulemaking, and he said commissioners hope they will get answers from petitioners about how to move ahead on the proposed rule.

“There are a lot of questions about how to do that,” Sanders said. “There may be answers.”

Sanders said the PSC opened up informal rulemaking under Section 304 of the Montana Administrative Procedures Act, and he believes MEIC is familiar with it since the nonprofit has participated under it before.

But Fitzmaurice, with MEIC, said in an email the informal rulemaking the PSC believes commissioners are operating under is only available to it “once they have initiated rulemaking.”

“In the PSC’s April 30 business meeting, they were very clear that by extending public comment through July 1 and asking petitioners further questions, they were not accepting or denying the petition, which is not an option available to them,” Fitzmaurice said.

Montana Code Annotated 2-4-315 outlines the way agencies handle petitions. It reads in part:

“Within 60 days after submission of a petition, the agency either shall deny the petition in writing or shall initiate rulemaking proceedings in accordance with 2-4-302 through 2-4-305,” it says. “A decision to deny a petition or to initiate rulemaking proceedings must be in writing and based on record evidence.”

In its own filing, MEIC said the statute doesn’t offer the option to extend the 60 days or to extend public comment “absent a decision to initiate rulemaking.” The filing noted Commission President James Brown “clearly articulated” on April 30 the PSC wasn’t rejecting the petition or starting rulemaking.

“The Commission has not taken either available pathway under Mont. Code Ann. 2-4-315 and is therefore violating that statute’s clear legal directive,” the filing said.

The petition is dated Feb. 28, the public hearing was held April 8, and commissioners voted on April 30 to extend the comment period. Fitzmaurice said petitioners will not be responding to the PSC’s questions under the circumstances.

“We will not be expending resources to respond to these questions posed outside of the lawful processes for petitions and rulemaking,” Fitzmaurice said. “If the Commission indicates it is serious about the petition and initiates rulemaking, we will work on our response to these questions.”

On behalf of the PSC, however, Sanders said the March 19 notice of public comment initiated the rulemaking process, which he said is currently underway. The document refers to the commission “contemplating rulemaking,” not “initiating rulemaking,” but Sanders said there’s little point in taking public comment otherwise.

“We generally do not ask for public comment on things the commission is not considering,” Sanders said.

At the meeting Tuesday, Commissioner Annie Bukacek proposed a motion to deny the petition, but no other commissioner seconded it, and it died without discussion.