by Nick Fitzmaurice
On Feb. 28, MEIC filed a formal petition with the Montana Public Service Commission (PSC), in partnership with businesses, organizations, and energy leaders from across Montana, requesting the PSC adopt a rule requiring consideration of climate change in its regulation of Montana utilities. Such consideration would bring its decisions in line with its constitutional mandate to maintain and improve a clean and healthful environment for present and future generations. MEIC is one of about 40 official petitioning organizations and businesses in this filing alongside Bridger Bowl, Montana University System student governments, Blackfoot Brewing, health professionals, and others. MEIC worked closely with partners at Gallatin Valley Sunrise, Families for a Livable Climate, Western Environmental Law Center, and Earthjustice to organize this effort.
The Montana Constitution guarantees all citizens the right to a clean and healthful environment. The ruling from last summer’s historic Held v. State of Montana youth climate trial confirmed that this constitutional right includes the right to a healthy climate. A primary outcome of this trial was that the District Court threw out laws recently enacted in the 2023 Legislative Session that attempted to limit the ability of state agencies to consider climate impacts in reviews under the Montana Environmental Policy Act (MEPA). The judge found not only that such limitations are unconstitutional, but that state agencies are required to analyze climate impacts for major projects. While the Montana Public Service Commission (PSC) is explicitly exempted from MEPA, it is not exempt from complying with the Constitution.
The Helena district court declared that, under Art. II, Sec. 3 of the Montana Constitution, Montanans “have a fundamental constitutional right to a clean and healthful environment, which includes climate as part of the environmental life-support system.” (Held Order, p. 102, ¶ 7). The court also found that Art. IX, Sec. 1 of the Montana Constitution places “an affirmative duty upon the government to take active steps to realize this right.” (Held Order, p. 96, ¶ 45) Critically, the court determined that “Montana’s climate, environment, and natural resources are unconstitutionally degraded and depleted due to the current atmospheric concentration of GHGs and climate change.” (Held Order, p. 98, ¶ 50). (You can read the full Held decision on MEIC’s website: www.meic.org/held-v-montana)
The PSC is an elected body charged with ensuring that “ratepayers” (i.e. utility customers) have continued access to utility services that are affordable, reliable, and in the public interest. Five commissioners represent PSC districts across the state, serving as the last line of defense in protecting utility customers from monopolies, as well as creating opportunities for Montana to take advantage of its enormous, low-cost renewable energy potential. This rulemaking request is an opportunity for the PSC to protect ratepayers from the profit-seeking and environmentally destructive actions of monopoly utilities such as NorthWestern Energy, while seizing the opportunities of renewable energy resources in Montana. As residential customers’ electricity rates rise dramatically, NorthWestern continues to invest in expensive fossil fuel infrastructure, which will take decades to pay off, continuing to drive up rates. Meanwhile, fossil fuel combustion is responsible for the majority of the greenhouse gas emissions both in Montana and globally, disrupting the delicate balance of Earth’s climate systems. In this rulemaking request, the PSC has the opportunity to comply with its constitutional duty and prevent climate harms from utilities such as NorthWestern.
The list of joint petitioners covers a broad representation of Montanans as a reflection of the pervasive impacts of climate change. The PSC can protect present and future generations, guaranteeing equity in its decisions regarding Montana’s energy system and making decisions that protect the most vulnerable from the harms of the fossil fuel industry.
Montanans have the right to petition the PSC to request the adoption of new or amended rules. This rulemaking petition asks the PSC to include consideration of the economic, social, and environmental implications its regulatory decisions have on the climate. In light of Held, the PSC must update its rules and practices to comply with Montanans’ Constitutional right to a clean and healthful environment – including a healthy climate.
This filing kicks off an up to 60-day window wherein the PSC can decide whether to take up the petition and initiate rulemaking, or deny the request in writing. In this window, the PSC will likely accept input from the public and has the option to hold a public hearing in order to hear from concerned Montana residents and the petitioners on the importance of adopting the proposed rules. At a minimum, there will be an opportunity for public participation at the PSC’s weekly business meeting when this decision is put on the agenda. You can provide your own public comments during one of these meetings at the PSC’s offices in person in Helena or remotely. You can also submit written comments via email to pschelp@mt.gov.
Notably, accepting the rulemaking petition would not adopt the rules, but would be the first step of the process. The PSC would then kick off a rulemaking process, including another round of public participation opportunities and an additional deliberation period. If the PSC denies the rulemaking request, it would be acting in violation of its obligation to abide by Montana’s Constitution, and the fundamental right to a clean and healthful environment.
This article was published in the March 2024 issue of Down To Earth.
