By Derf Johnson
As the United States and the world continue to shift to cleaner, more affordable energy sources, Montana policy-makers continue to live in a vacuum, seemingly immune to external realities that challenge their assumption that coal will continue to be a linchpin for decades. But this is contrary to reality, both here in Montana and around the world. Case in point: according to recently released numbers by the U.S. Energy Information Administration, renewable energy has now surpassed coal in terms of electricity generation. Coal-fired generation accounted for 20% of the electricity generation in 2022, a stark decline from 23% in 2021, while renewable energy rose to 21% of the overall electricity mix. These significant changes all occurred before major, landmark changes to electricity production kick in under the Inflation Reduction Act. All credible projections continue to show an exponential growth in renewables and a long-term, structural decline in coal.
Meanwhile, in the Montana Legislature, the coal lobby continues to exert a disproportionate influence at the expense of our environment, agriculture, and a clean energy economy. In particular, the coal industry successfully pushed three bills through the Legislature that attempt to weaken water quality, environmental protections, and citizen accountability for an industry in free-fall. These changes may buy a few more hours for an industry that is on life support but ultimately will not change the trajectory of the energy industry. Unfortunately, they will likely leave lasting damage as the coal industry goes into the sunset.
The most problematic bill, HB 576 (Rep. Rhonda Knudsen, R-Culbertson) weakens the requirement for coal mining operations to protect water quality outside of the permit boundary. The legislation would purportedly allow for coal mines to violate water quality standards, provided that they don’t cause a “long term or permanent exceedance” of water quality standards. Conveniently, “long term” is not defined, and the coal industry is undoubtedly going to argue for a dramatically extenuated timeline in which they can violate the law without repercussion. The bill also attempts to require that water quality standards are tied to a pre-mining “baseline” of water quality standards, but then goes on to exempt the government from having to actually establish the baseline in advance of issuing a permit. It defies common sense (and likely federal law) to tie pollution standards to a baseline water quality standard and then not actually require that the baseline be established.
Not to be outdone, Sen. Steve Fitzpatrick (R-Great Falls) successfully passed SB 392, “loser pays” legislation in coal mining permit appeals. Billed as legislation that inserts “fairness” into the permit appeals process, the legislation is anything but. If a party (e.g., non-profit, landowner, etc.) should lose a legal challenge against a coal company, the party would potentially be required to pay the attorneys’ fees of the adverse party. While this may seem like an issue of fairness on its face, this legislation actually means to prevent any legal challenges from being brought against coal companies for their bad behavior. This is because the legal fees that coal companies could accrue in potentially defending an environmental suit could be very significant, and a small nonprofit (such as MEIC) or landowners would likely be unwilling to take on the significant risk in having to pay a massive attorneys’ fee bill from a team of expensive, high-priced lawyers and experts, should they lose (even on a technicality). Thankfully, this legislation conflicts with federal law and is unlikely to be approved by the U.S. Office of Surface Mining.
Finally, Rep. Gary Parry (R-Colstrip) passed HB 656, a bill that would allow for coal mine expansions under 320 acres to avoid environmental assessments and a public process by defining such expansions as a “minor amendment.” Typically, coal mine expansions must go through a “major amendment” process, which includes stringent environmental review and public engagement processes. This bill would allow for expansions to evade environmental review and a public comment process, and make certain expansions a simple administrative step at the Montana Department of Environmental Quality (DEQ). What’s more, the language in the bill does not prohibit multiple, repeated minor amendments from being authorized by DEQ, so that the coal mine operator can evade the 320-acre limit on a single expansion and avoid considering the cumulative impacts of one or more expansions.
In truth, coal mining is taking its last gasps here in Montana and around the world. While clean energy won’t replace coal-fired power and mining overnight, the transition is already well underway. It would have been prudent for Montana Legislators to recognize this reality; they could have taken action to help workers during an energy transition and to protect Montana’s clean water, climate, and agricultural industry from an industry with a very limited shelf life. Instead, the Legislature chose to weaken laws and to allow for the industry to leave degradation and pollution on the way out the door. Maybe, just maybe, 2025 will be a different story.
This article was published in the June 2023 issue of Down To Earth.
