Nuclear energy on the radar in Montana Legislature

Nuclear energy is having a moment in the Montana Legislature. With uncertainty surrounding the future of the state’s coal-fired power plants and the Biden administration’s aggressive targets for reducing fossil-fuel emissions to combat climate change, Montana’s energy landscape is in flux. Nuclear energy development has come up in past legislative sessions, but this year lawmakers — Republican lawmakers in particular — seem motivated to pave the way for adding nuclear to Montana’s energy mix.

The House passed a simultaneously controversial and low-profile measure last month that seeks to “eliminate restrictions on nuclear facility development.” The most obvious thing House Bill 273 does is repeal a 1978 law that requires a majority of Montana voters to approve any nuclear energy facilities before they can be built here. The bill drew unanimous support from Republicans and near-unanimous opposition from Democrats in passing the House on Feb. 16.

HB 273 is 22 pages long, but discussion has been hyper-focused on four lines the bill would remove from Montana law: “If the [Department of Environmental Quality] decides to issue a certificate for a nuclear facility, it shall report the recommendation to the applicant and may not issue the certificate until the recommendation is approved by a majority of the voters in a statewide election called by initiative or referendum according to the law of the state.”

Bill sponsor Rep. Derek Skees, R-Kalispell argues that’s an outdated law that shouldn’t constrain nuclear energy development, and he’s suggested that voters didn’t know what they were voting for when they passed the initiative that codified the requirement.

“We’re gonna hang our hat on this? On 1978 — two generations ago — when they thought disco was good music and that was what they wanted?” Skees told his colleagues in the House.

Skees also argued that the Legislature is better equipped to make complex decisions about energy development than the general public.

When Skees presented HB 273 before the House on Feb.15, he opened by saying, “This bill does one thing and one thing only.” But experts familiar with the bill have told Montana Free Press that it does much more than strike the 1978 law’s voter-approval clause — it also removes nuclear facilities from the purview of the state’s Major Facility Siting Act, or MFSA.

MFSA was created in 1973 after voters ratified the Montana Constitution drafted by delegates to the Constitutional Convention the previous year. The Montana Constitution recognizes Montanans’ right to a “clean and healthful environment” for present and future generations and directs lawmakers to administer and enforce that right. In response, legislators created the MFSA, which includes a process that allows citizens to take part in decisions regarding major energy projects in the state.

It’s generally reserved for the biggest projects in the state involving lots of infrastructure over a large area, such as oil pipelines, high-voltage transmission lines and dams. Units 3 and 4 of the Colstrip power plant were evaluated and ultimately approved under the MFSA. The act is administered by the Montana Department of Environmental Quality and involves extensive environmental analysis that’s designed to take a holistic, landscape-scale look at project impacts. Most recently it was used to examine the Keystone XL pipeline.

Lawmakers in the current legislative session appear to have arrived at the conclusion that the MFSA would still apply to nuclear facilities if Skees’ bill passes, as evidenced by their conversations in the House Energy, Technology, and Federal Relations Committee. During the committee’s executive action on the measure, Rep. Geraldine Custer, R-Forsyth, said, “the whole Major Facility Siting Act would kick in.”

But the DEQ has come to the opposite conclusion. Rebecca Harbage, the DEQ’s public policy director, told Montana Free Press the department’s reading of the bill finds that it removes nuclear energy facilities from the MFSA.

Harbage said that DEQ has had conversations with Skees about the agency’s interpretation of HB 273, specifically as it pertains to the MFSA. She said it’s unclear if Skees intends to amend the bill. Skees did not respond to multiple requests for an interview on the subject.

“At this point we’re confident that he’s aware of that impact,” Harbage said. “We’re still closely tracking the bill and trying to decide on our next steps.”  

Harbage added that the agency occasionally takes a position on bills pertaining to its operations, but that at this point it’s participating in a solely informational capacity.

Harbage also pointed out that removing nuclear facilities from MFSA purview does not mean new nuclear energy facilities would be built without regulatory oversight. Federal regulations would apply, specifically those administered by the U.S. Nuclear Regulatory Commission, an independent federal agency that licenses and inspects all commercial nuclear power plants in the U.S. 

But Harbage said the DEQ isn’t entirely sure what its role in nuclear development would be if MFSA does not apply. Some of the issues regularly studied by DEQ, such as stream crossings and storm drainage, would be examined if applicable, but “we’re just not sure at this point what else would catch it,” she said.

“We haven’t seen an application for a nuclear facility before, so we don’t entirely know what permitting it would trigger for the state of Montana,” she said.

THE DÉJÀ VU BILL  

The arguments made for and against HB 273 in committee hearings last month overlap considerably with those presented a decade ago when Rep. Dan Kennedy, R-Billings, sponsored House Bill 326, which is almost identical to Skees’ bill. Some of the same lobbyists, notably Montana Conservation Voters and the Montana Environmental Information Center, testified against both bills.

The single proponent testifying in favor of Kennedy’s bill 10 years ago said contemporary nuclear technology was nothing like it was when voters passed the 1978 ballot initiative, that it’s  much smaller and safer than what was current during the infamous reactor failures at Three Mile Island and Chernobyl, and that it can contribute consistent, reliable carbon-free power — all arguments that continue to resonate with supporters today.

At the time, bill opponent Kyla Wiens, with the Montana Environmental Information Center, said “nuclear energy is not ready for prime time” due to the price tag attached to nuclear power and concerns about nuclear waste disposal. She was joined by a representative from Montana Conservation Voters, who said it would be wrong to overturn the two-thirds of voters who approved the ballot measure.

At the hearing for Skees’ bill this year, those same arguments came up, but this time the measure had the support of major energy industry players. Three proponents testified, including David Hoffman, director of government affairs for NorthWestern Energy, who said the company has issues with baseload power supply, and that “this [modern nuclear reactor] technology sounds like it would be a fantastic capacity resource on that 24/7 basis.” 

As in 2011, the House Energy Committee conducted a robust debate about the proposal during executive action. During that 2011 session, Kennedy fielded sharp commentary from members of his own party about the MFSA change and the appropriateness of circumventing Montana voters.

Rep. Ken Peterson, R-Billings, said he liked the idea of putting nuclear power into the energy mix, “but if it’s taken completely out of MFSA, I’ve got a problem with it — sorry.”

“Clearly this bill removes the public from the process, and it removes the public process from the process,” said Rep. Mike Phillips, D-Bozeman, registering his opposition in 2011.

Kennedy’s bill was ultimately rejected by committee members in an 11-5 vote. Skees, who currently chairs the House Energy Committee, was one of five representatives who voted in favor of Kennedy’s bill a decade ago.

This year, the revived version of Kennedy’s bill didn’t receive the same level of scrutiny from Republicans. During questioning, GOP members of the committee asked Skees if there are other energy sources in Montana subject to voter approval (there are not) and asked Hoffman if he’s aware that there’s currently an operational nuclear energy facility in Antarctica (Hoffman wasn’t, and there isn’t, though there once was — it had a 10-year run in the 1960s and early ’70s). Democrats on the committee asked tougher questions about overturning voters’ will with HB 273, and questioned whether the Legislature is adequately informed and equipped to make decisions about nuclear policy.

Along party lines, HB 273 passed out of committee 8-4 on Wednesday, Feb. 10. Less than a week later it passed third reading on the House floor, 68-32. Testimony from lawmakers — and their votes — were clearly delineated by party affiliation. Just one lawmaker, a Democrat who voted in support, broke ranks.

As of March 2, a hearing date before the Senate Energy and Telecommunications Committee — the next step in HB 273’s progression — has not yet been set.