By Derf Johnson
Held v. State of Montana made some waves across not just Montana, but the world. In the ruling, a Montana District Court judge ordered that the state of Montana was failing in its duty to maintain and improve a clean and healthful environment by intentionally avoiding the consideration and mitigation of climate change. Following the groundbreaking ruling in Held, the Montana Department of Environmental Quality (DEQ) began a stakeholder process on ideas to both “reform” and “update” the Montana Environmental Policy Act (MEPA) and how to consider a project’s climate change impacts. Last fall, a series of listening sessions were held, and this spring, a stakeholder group routinely convened to deliberate on and suggest reforms to MEPA processes. There’s good ideas, bad ideas, and some terrible ideas.
The Good
The stakeholder group ultimately broke out into three subgroups and made recommendations to the full stakeholder group for consideration. These subgroups include the Climate Analysis Subgroup; the Process and Applicability Subgroup; and the Public Engagement & Education Subgroup. Notably, as a whole, the stakeholder group thought that MEPA would benefit from more broad and robust public engagement and participation; more transparency surrounding MEPA decisions; and more readily available information about MEPA. Much of these recommendations were driven by the Public Engagement & Education Subgroup, but the other Subgroups agree.
The Ugly
The biggest disagreement MEIC has is in regard to the Process and Applicability Subgroup’s second recommendation, which calls for a wholesale revision to MEPA to render it virtually meaningless by passing legislation to “clarify the legislative intent that MEPA is procedural, and distinctly different from the substantive statutes that regulate environmental impacts.” Basically, if put into effect, such a recommendation would render MEPA to be only a “procedural” exercise and not require a “substantive” evaluation of a project’s impacts on the environment. The recommendation also includes a suggestion that, should a MEPA document be deemed insufficient, the law be changed to “limit the ability of procedural challenges to hold up permits that could otherwise be issued based on technical analysis conducted for those individual permits.”
These changes would be a catastrophe for environmental protections in Montana, primarily because MEPA serves the unique purpose of being both a public engagement and education tool as well as a “one-stop” evaluation document that considers the impacts of a project before it is permitted (“look before you leap”). Rendering MEPA a paper exercise without a strong, substantive purpose and recourse for the public (and a disincentive for DEQ to actually do a good job on MEPA analyses) would seriously undermine our constitutional rights and responsibilities.
The Bad
MEIC also believes that the recommendations of the Climate Analysis Subgroup fell short. While the recommendations offered a good start and are the product of compromise, they failed to include critical recommendations to assure that a climate analysis in a MEPA review is both scientifically robust and lawful. Most importantly, the recommendations did not suggest or encourage that DEQ consider secondary or Scope III emissions, and failed to recommend that DEQ utilize the Social Cost of Greenhouse Gases (SCGHG) as a metric to better characterize and contextualize the pollution caused by DEQ’s permitting actions.
Regarding secondary (Scope III) emissions, DEQ has finally begun to analyze the GHG impacts of its permitting actions in MEPA documents because of the Held ruling. Such analyses have included a calculation of the on-site emissions of GHG associated with permitting a project. For example, DEQ is now analyzing the GHG emissions generated from operating machinery at a coal mine seeking a permit. However, DEQ is not considering the inevitable combustion of the coal, which will result in millions of tons of GHG emissions each year. Such a limited analysis minimizes or downplays the actions of DEQ by suppressing the overall emissions that would actually result from approval of the project. Failure to consider secondary emissions is ultimately nonsensical, as GHG have a very real, very direct impact on Montana, whether they are combusted in Colstrip or Shanghai.
Additionally, the SCGHG is a metric developed by the federal government to characterize and monetize the societal impacts from GHG pollution. It places a dollar-per-ton cost on the climate pollution, which represents the societal costs that will be borne from releasing each ton of GHG (rising seas, air pollution, dangerous heat waves, agricultural impacts, etc). The SCGHG is currently used by numerous federal agencies and over a dozen states in considering the impacts of climate pollution. It should have been a no-brainer for the stakeholder group to recommend its use, but politics and special interests prevailed. Without this monetary analysis, DEQ will continue to detail the economic benefits of burning fossil fuels without considering the economic harm, creating a lopsided analysis that favors the burning of fossil fuels.
DEQ and the stakeholder group took public comments on the final draft recommendations until June 24. The full list of recommendations and additional information can be viewed at www.deq.mt.gov/about/MEPA.
This article was published in the June 2024 issue of Down To Earth.
