Laura Lundquist

(Missoula Current) After a Montana district judge recently ruled that the state should take a closer look at a proposed Laurel gas power plant and its contribution to greenhouse gases, Republican legislators are trying to rush through a last-minute bill to prevent any consideration of climate change when it comes to state-issued permits.

On Monday, the House Natural Resources committee heard testimony on and passed House Bill 971, sponsored by Rep. Joshua Kassmier, R-Fort Benton. The 10-5 party-line vote occurred Monday evening with Republicans voting in favor.House Bill 971 sets up a sort of Catch-22 for Montanans.

First, it says the Montana Department of Environmental Quality may not consider greenhouse gas emissions and their related impacts when conducting environmental reviews for permits.However, knowing the courts could find that requirement violates the Montana Constitution’s right to a clean and healthful environment, the bill also sets up a contingency where most of DEQ’s permits - air, water, oil and gas, mining - will no longer go through environmental review under the Montana Environmental Policy Act if the Montana Supreme Court makes such a ruling. Kassmier said the bill is nullified once the U.S. Congress regulates carbon emissions under the Clean Air Act.

The Montana Environmental Policy Act requires DEQ to analyze project proposals for potential effects on fish and wildlife, water resources, cultural and historic resources, air quality, vegetation, public safety, and the community. It also requires public notification and allows for public comment.

During a rushed committee meeting - committee members didn’t leave the House floor until 4 p.m. and had to return 90 minutes later - Kassmier said the Montana Environmental Policy Act created the procedure for environmental review but wasn’t intended to be regulatory. State courts have turned it into a tool to regulate carbon, Kassmier said.

“The Legislature must act to correct this blatant misinterpretation of the law and overreach of the courts,” Kassmier said.

The court ruling to which Kassmier was referring is Yellowstone County district judge Michael Moses’ April 6 decision regarding NorthWestern Energy’s gas generating station being built in Laurel. Moses ordered the DEQ to take “a hard look” at the plant’s greenhouse gas emissions and light pollution and do an environmental study before issuing a permit.

It’s been less than two weeks since Moses issued his ruling, but Republican legislators reacted quickly. Over the past week, the bill was drafted and finalized in time to be introduced to the House on Friday. The House had to vote to suspend the Legislative rule requiring appropriation bills to be introduced by March 28, and it did so Friday on a party-line vote. The bill appropriates $500 for DEQ to make regulation changes.

On Monday, 10 proponents testified for the bill, representing all the industries profiting from natural resource extraction, including coal, oil and gas, and mining, plus contractors, three unions and the Montana Chamber of Commerce.

Many proponents claimed that Moses’ ruling would “open Pandora’s Box,” causing every DEQ permit application - air, water, hard-rock and open-pit mining - to be possibly delayed by environmental analyses or challenged.

Helena attorney Leo Berry said he wrote the original language in a 2011 bill intended specifically to exclude evaluations of global warming, but the court didn’t interpret it that way. The original language stated an environmental review “may not include a review of actual or potential impacts beyond Montana's borders. It may not include actual or potential impacts that are regional, national, or global in nature.”

“I thought the language was pretty clear at the time,” Berry said. “The language that is now added makes it very clear what the intent of the bill is.”

However, House Bill 971 does more than clarify that language. It adds the contingency language that results in the loss of Montana Environmental Policy Act analyses if the courts ever decide that limiting greenhouse gases falls under the Constitutional protection of a clean and healthful environment.

Sixty-five opponents testified against the bill, but due to the rushed nature of the hearing, only 15 were allowed two minutes each to testify. The rest were allowed only to say their names and that they were opposed.

Clark Fork Coalition attorney Andrew Gorder said the rule-bending and hurried process that didn’t allow legislators time to properly evaluate HB971 wasn’t fair to Montanans.

“This bill eliminates a Constitutional right to process entirely via the poison pill approach that’s baked into the bill as it relates to the MEPA process. And now we’ve had two days, over a weekend, for the public to learn about the bill, review the bill and 20 minutes, roughly, to voice concerns about a very significant change to our environmental laws,” Gorder said. “This is fundamentally unfair. This isn’t how our voters, your constituents, want to see process done in Montana.”

Rep. Tom France, D-Missoula, asked DEQ director Chris Dorrington if the state planned to appeal Moses’ ruling. Dorrington said the state had the right to appeal but was still evaluating the ruling.

That is why Republicans are rushing HB971 through the Legislature. With only about two weeks to go in the Legislative session, they want to pass HB791 in time for DEQ’s appeal.

Anne Hedges, Montana Environmental Information Center executive director, said that is essentially throwing down a dare for the Montana Supreme Court.

“It’s holding a gun to the Supreme Court’s head. It’s a really (disgusting) game of chicken,” Hedges said.

Rep. Steve Gunderson, R-Libby, the Natural Resources committee chair, had the committee reconvene after the floor votes Monday evening in order to vote on HB971. Rep. Marilyn Marler, D-Missoula, asked why the vote needed to happen immediately. Gunderson said the bill needed to get over to the Senate as soon as possible.

“This isn’t about the Laurel gas plant. This is about border-to-border, east and west, north and south of Montana within our borders. And it’s going to touch every square inch of that. If we didn’t react when we did, if we wait for an appeal, we won’t be here. That’s two years. I don’t think we’ve got two years to wait,” Gunderson said.

The bill now goes to the House floor.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.

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