By Anne Hedges
Is the Montana Department of Environmental Quality (DEQ) required to consider climate change when it analyzes a large methane-fired power plant’s impact on the environment? DEQ and NorthWestern Energy say no. MEIC disagrees.
In September 2021, Earthjustice, on behalf of MEIC and Sierra Club, filed a legal challenge in state district court arguing that DEQ’s approval of NorthWestern Energy’s gas plant near Laurel violated state law for failing to analyze the potential climate impacts of NorthWestern’s proposed 175-megawatt gas-fired plant on the banks of the Yellowstone River. The Montana Environmental Policy Act (MEPA) is one mechanism that implements Montanans’ Constitutional right to a clean and healthful environment, yet DEQ ignored climate impacts in its environmental analysis. In April 2023, a district court judge ruled in our favor, finding that the state had an obligation to consider climate change in the MEPA analysis.
In response to the district court ruling, three things occurred. First, NorthWestern Energy and the state appealed the decision to the Montana Supreme Court arguing that the state had no obligation to consider climate change when permitting the plant. Second, Northwestern convinced the Montana Legislature to suspend its rules and pass a new law that prohibits the state from considering climate change in any state agency’s MEPA analysis. Third, DEQ began the MEPA process to comply with the court order and consider climate change and lighting issues related to NorthWestern’s plant.
In August 2023, a state district court ruled in the youth climate case, Held v. State of Montana, that the new law outlawing consideration of climate change under MEPA violated the youth’s Constitutional right to a clean and healthful environment. The court found that DEQ was required to consider climate change when it analyzed the impacts of the plant. While welcome news, what didn’t make the papers was DEQ’s abandonment of the MEPA process for the gas plant. DEQ ignored the court order and simply stopped working on the MEPA analysis, instead putting its energy into a Supreme Court appeal of the decision and a lengthy process to reach a modicum of agreement on ways to clarify the overall MEPA process. (Unfortunately, the DEQ process still doesn’t address how the state should consider climate change in its MEPA analysis or decision-making. See article on pg. 20.)
In May 2024, the Montana Supreme Court heard oral arguments on the appeal of the district court decision. Jenny Harbine with Earthjustice argued eloquently about the state’s obligation to analyze climate impacts in the permitting of large projects that could contribute to the climate crisis. By contrast, the state’s and NorthWestern’s arguments were troubling and misleading. NorthWestern argued that DEQ had no obligation to analyze climate change impacts since state permitting laws didn’t directly require climate analysis, and DEQ was not authorized by the legislature to mitigate climate harms. This argument is terribly flawed, as MEPA has always required analysis and disclosure of a project’s potential impacts to cultural and historic resources; fish and wildlife resources; and public safety, none of which have underlying permitting statutes. Under NorthWestern’s argument, these issues would no longer be required to be analyzed and disclosed to the public in the MEPA process.
The state’s argument was equally flawed, basically arguing that since it didn’t understand the specifics of what would be included in a climate impacts analysis, it shouldn’t be required to conduct such an analysis. The court will rule on this case in the coming months.
This article was published in the July 2024 issue of Down To Earth.
