Please sign-on to our petition urging the DEQ to immediately consider climate impacts in environmental analyses under the Montana Environmental Policy Act and comply with the order from Held v. State of Montana.
The Montana Department of Environmental Quality (DEQ) is trying to avoid immediate compliance with the Held v. State of Montana court decision in which it is required to consider climate change when analyzing the environmental, economic and social impacts of proposed projects that harm the air, land, and water under the Montana Environmental Policy Act. MEPA is the process by which the state discloses the potential harm from new or expanding power plants, coal mines, or refineries. MEPA implements Montanans’ constitutional rights to a clean and healthful environment and the public’s right to know and participate in state government decision making.
DEQ has several tools and hard science available to analyze the climate impacts associated with carbon emissions from polluting projects. After the Held decision came out in August 2023, any attempt by DEQ to avoid analyzing climate change is stalling and avoiding what is required of the agency under Montana’s constitutional right to a clean and healthful environment.
You can also submit comments to DEQ by 11:59pm on December 1 through the link on DEQ’s website here.
Scroll down for more information and talking points.
In July, a Montana District Court judge issued an order (Held v. State of Montana), which required DEQ to consider the climate impacts associated with its actions, and found that a stable climate was a critical aspect to Montanans fundamental right to a clean and healthful environment.
To date, DEQ has not complied with the clear order in Held. Instead, DEQ is holding public hearings to gather public comment on how it can change MEPA to make it more “modern” and how it should consider climate impacts.
While opportunities certainly exist to improve MEPA, the court told DEQ to immediately consider climate change in its environmental analyses under MEPA. DEQ has the tools to consider climate change now, such as the Social Cost of Greenhouse Gases (SC-GHG) analysis. It also has a legal obligation to do so.
DEQ could use the existing SC-GHG that the federal government had developed and used to determine the cost associated with every ton to greenhouse gas that a company is requesting to add to the already saturated atmosphere. As the court stated in Held, every additional ton of greenhouse gas pollution matters. Each new ton is causing harm and should be mitigated.
Talking Points on DEQ MEPA Reforms
The Montana Environmental Policy Act (MEPA), or “the people’s law,” is a critical component of environmental permitting and public participation in Montana. It is often referred to as a “look before you leap” law, as it requires state agencies to consider – and affords the public the opportunity to comment on – the environmental, fish and wildlife, economic, social, and cultural impacts of proposed projects (such as air, water, and mining permits) before their approval.
Any changes to MEPA must assure that it still explicitly fulfills the government’s obligation to maintain and improve the constitutional right to a clean and healthful environment as well as the public’s constitutional right to know and participate. In order to preserve the integrity of the MEPA process, and not turn it into a paper exercise, MEPA cannot be rendered into a procedural, voluntary, non-substantive process. There must be repercussions when industry or the government fail to comply with MEPA. Further, as required under the constitution and noted by the court in Held v. Montana, the state must have the ability – and, indeed, has the obligation – to deny permits to protect the public from environmental harm such as the harm occurring right now from climate change.
1. Climate change must be robustly considered in the MEPA process. It is causing profound impacts on Montanans’ health, economy and environment, as found by the court in the Held decision. In weighing alternatives under MEPA, moving beyond fossil fuels will save Montanans billions of dollars: “Converting from fossil fuel energy to renewable energy would eliminate another $21 billion in climate costs in 2050 to Montana and the world. Most noticeable to those in Montana, converting to wind, water, and solar energy would reduce annual total energy costs for Montanans from $9.1 to $2.8. billion per year, or by $6.3 billion per year (69.6% savings). The total energy, health, plus climate costs savings, therefore, will be a combined $29 billion per year (decreasing from $32 to $2.8 billion per year), or by 91%.” (Held, Finding of Fact # 275)
2. Calls to reform MEPA center around its modernization, in truth MEPA has been “streamlined” and “modernized” more than a dozen times over the last 25 years. The significant changes to MEPA in 2011 resulted in less rigorous analysis and public disclosure, reduced public participation opportunities, and a reduced ability for the public to challenge agency decisions in court. However, any change to MEPA must stand up to, and conform with, constitutional requirements. Notably, two of the changes from 2011 have been found to be unconstitutional by Montana courts.
3. DEQ currently has the tools, knowledge and ability to analyze the climate change impacts associated with projects. Punting this analysis until after the stakeholder process is a stall tactic. When asked by the court in Held whether DEQ could analyze climate impacts in the MEPA process, DEQ stated, “I do believe we could do this kind of analysis, yes.” Now DEQ seems to be saying that it can’t comply with the court decision until its proposed stakeholder group concludes in late 2024, the 2025 legislature weighs in, and the Supreme Court rules. Instead of “kicking the can down the road,” DEQ must comply with the district court decision and analyze climate impacts of proposed projects such as refineries, coal mines, and coal plants, with currently available tools (for example, utilizing the federal government’s social cost of greenhouse gasses (SC-GHG) analysis).
4. A stakeholder group is unnecessary for developing a robust process for DEQ to analyze climate impacts. As the legislature and Governor move to reduce red tape and to eliminate boards and committees, the DEQ seems to be moving in the opposite direction.