By Derf Johnson
More than a decade of dogged advocacy and laser-focused persistence has paid off: The Montana Supreme Court found in favor of MEIC and our partners on a number of important, precedent-setting claims in regard to the permitting of a coal mine expansion in southeastern Montana – the Rosebud Coal Mine. The precedent set by the case will hopefully cause the Montana Department of Environmental Quality (DEQ) to hit the “reset” button on coal mine permitting here in the Big Sky State and assure that water quality adjacent to coal mines is protected, as required by state and federal law. A thanks is in order, as MEIC would not have achieved this victory without the excellent legal representation of our attorneys: Shiloh Hernandez (formerly with WELC and now with Earthjustice), Walt Morris, and Roger Sullivan.
The Rosebud Coal Mine is the sole supplier of coal for the Colstrip coal-fired power plant. Coal is mined at Rosebud, trucked to a conveyor, and then sent to the plant where it is burned. Before Units 1 and 2 retired in 2022, Colstrip was capable of burning a railcar’s worth of coal every five minutes. While one-third of the energy production capacity of the plant no longer operates, the Colstrip plant still consumes an enormous amount of coal (6 million tons annually) and billows almost 11 million tons of greenhouse gas pollutants into our atmosphere each year. It is by far the largest greenhouse gas polluter in Montana and one of the largest in the western United States.
Over several decades, the Rosebud mine has stripped an area the size of the City of Billings, with enormous ramifications for the water quality and quantity in the area. Ultimately, the Montana Supreme Court found that DEQ and the Board of Environmental Review (BER) did not adequately consider the coal mine’s impact to water resources, including “cumulative” impacts from the mine and the length of time pollution would be allowed to occur. The court also found that the BER hearings examiner improperly refused to consider evidence presented by conservation groups.
The water quality protections afforded by the rule are particularly critical for Montana; in such an arid state, water will exponentially increase in value as our climate warms. This is particularly true in southeastern Montana, where the stream in question (Armells Creek) has been hammered by decades of coal strip mining. As noted by the court, since 2006, “DEQ has designated the stream as impaired and failing to achieve water quality standards for supporting growth and propagation of aquatic life.” Now, in issuing coal mine permits, DEQ must consider whether the cumulative hydrologic impacts will cause “material damage” to area waters, which includes violation of water quality standards. DEQ ignored this duty when it approved the expansion of the Rosebud strip mine that DEQ itself found would extend the creek’s water quality impairment for “tens to hundreds of years.”
The Montana Supreme Court has remanded the matter to DEQ to consider the cumulative impacts of the permit amendment on area waters, including an analysis of prolonged pollution that will emanate from the mine expansion. While this process will be important for protecting what’s left of Armells Creek, there is also far more work to be done on coal mine expansions and the protection of our water (see article on pg. 14). The precedent set by this case will hopefully require that not only are state and federal laws followed, but that clean water remains a priority for the Montana DEQ.
This article was published in the March 2024 issue of Down To Earth.
