DEQ work group to assess state environmental law
Laura Lundquist
(Missoula Current) The state of Montana is continuing to probe Montana’s environmental law by creating a working group. But like many citizens who attended fall listening sessions, the group members aren’t really sure what they’ll be reviewing.
On Monday, the Department of Environmental Quality announced that it had formed a 19-member working group that will spend the first half of 2024 discussing aspects of the agency’s implementation of the Montana Environmental Policy Act, or MEPA.
The Legislature passed MEPA in 1971, creating state policy for evaluating and for allowing the public to comment on projects or activities that could affect Montana’s land, air and water, such as mining or managing waste. The law was patterned after the 1969 National Environmental Policy Act.
In September, the DEQ said in a release that the agency wanted to explore “whether and how the regulatory framework, enacted in the 1970s and 1980s, should be modernized to reflect the experiences of the past fifty years and the demands of today’s contemporary society.”
Between Oct. 2 and Nov. 1, DEQ held four public listening sessions to gather input on the MEPA process, DEQ implementation, and potential need for updates to the statutes or implementing rules. One meeting was online and the others were in Billings, Butte and Missoula.
But the effort wasn’t initiated out of the blue. In August, Montana’s climate change lawsuit, Held v. State of Montana, resulted in a Helena district court ruling that said the constitution requires the state to consider the climate impacts of proposed projects under MEPA. So the DEQ also must figure out how to incorporate climate change effects into MEPA and environmental analyses of projects.
But DEQ’s vague explanation of its effort created confusion for many of the more than 300 citizens who turned out for the listening sessions about just what DEQ intended or wanted to hear. Many expressed worries that the Gianforte administration would further reduce MEPA protections.
Now that DEQ has created a working group, the newly assigned members are also unsure about what it is they’ll be working on.
Included among the six legislators in the group is Rep. Jonathan Karlen, D-Missoula, who said he didn’t know exactly what the group would be working on. But the first meeting on Jan. 22 is devoted to planning the follow-on discussions.
Considering the Held v. State of Montana ruling and with DEQ finding itself as the defendant in a number of citizen-led lawsuits since the 2021 Legislature, Karlen said now is probably a good time to look at DEQ’s application of MEPA.
“At our first meeting, we’ll probably learn what DEQ hopes to get out of this. I think we’ll get more information on where DEQ has had the most challenges in fielding lawsuits,” Karlen said. “My understanding is some of the discussion we’ll have is what MEPA is but also what it isn’t. Where are there gaps in the public understanding of MEPA? Because there are things that people want it to be that it’s not. It’s important for us as a committee to look at.”
In a Jan. 8 announcement, the DEQ identified four initial subject areas for the working group to address, based on input from the public listening sessions. They include 1) sustaining and improving public engagement under MEPA; 2) addressing implementation and applicability challenges of MEPA – clarity, consistency, communication, and procedural continuity; 3) determining the applicability and scope of a greenhouse gas inventory and disclosure and climate impact analyses; and 4) next steps for broad MEPA education and outreach.
Karlen said he was pleased to see that DEQ had put a diverse group together. Other working group members include representatives of mining and contracting companies, environmental nonprofits, tribes and universities.
Representing the Montana Environmental Information Center, deputy director Derf Johnson said he also wasn’t clear yet on what the working group was being asked to do, but that DEQ has some problem areas to fix when it comes to following MEPA.
“In my experience, the “modernization” or “cutting red tape” in MEPA has been a euphemism for weakening MEPA,” Johnson said. “It’s not like the law hasn’t been updated since its inception. It’s been hacked at left-and-right, always to weaken environmental protections and to weaken public engagement. It’s not outdated, necessarily. A lot of the problem lies in the ability of the agency to correctly and fully implement it.”
Johnson pointed to a 90-acre landfill in Shepherd outside Billings that Pacific Steel and Recycling proposed in October. The public pushed back when DEQ initially allowed only 10 days to comment on the proposal seemingly at the request of the developer, according to the Billings Gazette. A DEQ spokesperson told the Gazette on Dec. 28 that DEQ’s mistake “was ever suggesting that there would be more time. The government now intends to strike all references from its permit forms.”
Johnson said that’s just another example of DEQ’s lack of consistency on when notice and comment are needed for an environmental assessment.
“When you’re an affected neighbor and you’re potentially dealing with water quality or other issues and have to wade through hundreds, if not thousands, of pages of material - that’s unworkable, especially if you have to hire someone to review the material. Ultimately, DEQ caved and gave them 30 days to review,” Johnson said. “DEQ has far too much discretion on when to engage the public on environmental analysis. We’re seeing a truncation or reduction in that engagement.”
Since 2021, the Legislature and the Gianforte administration has made things more difficult for DEQ by passing laws that limited the amount of time the agency could spend on environmental assessments and the environmental aspects that could be considered. For example, Karlen said he was disappointed with House Bill 971 passed in May 2023 - prior to the Held decision - that prohibited DEQ from assessing a project's contribution to greenhouse gases.
“Climate change is real, and we need to be factoring that in to all the decisions that we make as a state,” Karlen said. “So I’m disappointed when the legislature chooses to purposefully bury its head in the sand. With MEPA, we should be putting climate at the forefront if we’re thinking about the long-term health of our economy and the health of my constituents.”
Some Montanans say the Legislature should stop mandating decisions that are better left to agency scientists. Johnson said DEQ can follow the Held v. State of Montana ruling and assess greenhouse gas contributions without making any changes to MEPA.
“In fact, I think it would be counterproductive to have a diverse working group come up with some sort of greenhouse gas metric. That’s something the agency can and should do through its discretion,” Johnson said. “There are a number of models out there, the most popular being the social cost of carbon, which several states and the federal government already use. They could start that today.”
The first meeting of the working group is 3:00-4:30 on Jan. 22 at DEQ headquarters in Helena and it’s also available on Zoom. Once the working group wraps up, DEQ said it would present a comprehensive report summarizing the conversation and offering recommendations.
In 1998, Rep. George Darrow, the Republican sponsor of MEPA, wrote in a Legislative guide that “MEPA significantly expanded the public right to participate in the decisions of government. Such impact statements were in effect deeply conservative provisions requiring thoughtful, informed, and deliberate consideration of the consequences and impacts of state actions. Simply expressed, they mandated, ‘Look before you leap.’”
“MEPA was purposeful in establishing a process whereby Montana can anticipate and prevent unexamined, unintended, and unwanted consequences rather than continuing to stumble into circumstances or cumulative crises that the state can only react to and mitigate. Again, simply expressed in country vernacular, ‘An ounce of prevention is worth a pound of cure,’” Darrow wrote.
Time will tell whether the working group and DEQ reinforces Montana’s ounce of environmental prevention.
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.